PROJECT TOPICS ON : AN APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR REGULATING THE IMPACTS OF MINING OF MINERALS ON THE ENVIRONMENT IN NIGERIA
Mining of solid minerals is one of the world‟s important industries. Nigeria is blessed with about 44 solid minerals spread over the six geo-political zones of the country where mining activities occur. No matter the type of technology used, environmental degradation is a natural consequence of mining of solid minerals. While mining of solid minerals is important for economic growth and development it has deleterious consequences or impacts on the environment.
The need to strike a balance between these issues is sacrosanct. Hence, laws, regulations and policies have been enacted or specified to ensure sustainable development of the sector. Also, government ministries, agencies and establishments have been set up and given powers, functions and responsibilities to implement relevant laws and regulations. In spite of measures put in place to ensure protection of the environment from the impacts of mining of solid minerals, poor enforcement and non-compliance with extant laws and regulations continue to constitute bane to the protectionof the environment against the negative impacts of mining activities in Nigeria.
The aim of this research is to appraise the role of legal and institutional frameworksfor regulating the impacts of mining of solid minerals on the environment in Nigeria. This thesis therefore inter alia examines the impacts of mining on environment, human health, livelihood, biodiversity, climate change and sustainable development goals; and analysis of legal responses to environmental degradation. One of the objectives of this research is to identify and analyse the problems and challenges associated with the effective enforcement of mining and environmental laws and regulations in the mining industry in Nigeria. The doctrinal and empirical methods of research were utilised in the research work. Under the doctrinal method, both primary and secondary sources of documents were consulted; while the empirical method entailed the administration of questionnaires to populations and data obtained were accordingly analysed. Consequent upon the foregoing, the findings of the research on the reasons for the prevalent cases of environmental degradation by the mining of solid minerals include the lack of enforcement of relevant laws and regulations. Therefore, the work recommends that our laws should be enforced by relevant government agencies charged with such mandate.
1.1 Background to the Study
Nigeria is endowed with vast reserves of solid minerals.1 Almost all corners of Nigeria is blessed with solid mineral assets.2 Minerals extraction is an integral part of human civilization.3No matter the method and technology used, mineral mining generally has some damaging effects on the environment.4 Consequently, the exploitation of solid minerals has been viewed from different perspectives by various scholars, analysts and interest groups.5 While some view the exploitation of such resources as necessary to provide basic societal or national needs, and thus ensure human sustenance and development human sustenance and development, others have considered the exploitation of these resources as a curse,7 cavalier, wanton waste and selfish; asserting that someAfrican and Asian countries, have exploited theseresources in unsustainable and inequitable manner.8
Solid minerals belong to the category of non-renewal resources;9 meaning that, their quantities as endowed by nature, once exhausted, cannot be replenished neither can they renew themselves. It the “Dutch Disease” and “Resource Curse” theories of mining of mineral resources.Mining of solid minerals is one of the world‟s important industries and is the world‟s second oldest industry after agriculture.
11 Mining is a global industry, contributing to both national and global economic growth for over 100 years. Mineral resource exploitation may have the likelihood of degrading the environment and contributing to Green House Gas (GHG) emissions and Climate Change. Climate Change may also have possible implications on mining activities.12 A discussion of the contributions of mining activities to the economic development of nations has also been highlighted in terms of inter alia wealth creation and Gross Domestic Products. Few examples of countries considered in terms of the contribution of mining to their GDP include Canada, Ghana, Botswana, DRC, South Africa and Nigeria.
For instance, in Canada, mining is one of the most important economic sectors and a major job creator. Approximately 375,000 people across Canada work in the mining and processing industries. Mining is the largest employer of Aboriginal peoples in Canada on a proportional basis and employment is poised to increase.13Mining contributed S36 billion to the country‟s GDP in 2010; 29% of the value of exports and earned S84 billion in taxes and royalties to the government. In addition, Canada has over 5,000 companies that have created jobs and economic growth for over 115 communities and employed 308,000 Canadians in 2010.14 In 2014, mining
In another instance, despite a declining contribution to GDP and employment, South Africa‟s minerals value chain remains a pillar of its economy and makes South Africa major global player, accounting for a significant proportion of world production and reserves. The South Africa mining sector contributes 8.6%- some R263 million to GDP, creating over 500,000 direct jobs and an additional 500,000 indirect jobs. It accounts for 50% of forex, 12% of investment and 13.2% of corporate tax receipts.16
The mining industry in Ghana is known to play a significant role in the country‟s growth and development as well as different economic sectors. The industry is the largest contributor, contributing to 35% of the country‟s export and 5% of GDP; it provides 1% of the country‟s total employment.17 Mining activities have ensured the development of infrastructure within different parts of the Country and enhanced the creation of industries. It generates USD 79m as government proceeds, the most significant of all is the direct royalty worth USD 42m it contributes. Mining in general also creates 7% employment opportunities in the informal sector. It contributes 5% of GDP.18 the Nigerian GDP.
In 2015, the contribution of the sector to the economy was put at between 0.5%-0.6% of the Country‟s GDP. These contributions appear to be insignificant when viewed particularly against the potentials and opportunities that could be derived from the industry. In other African Countries contribution to GDP is higher; for example, in Botswana it is 40%and DRC 25%.21
On the flip side of the foregoing account, are the negative impacts of mining on local and global environment, resulting in the degradation of the environment and its bearing on general earthly livelihood and sustainability. The devastating and deleterious impacts or effects of mining all over the world is by degradation of the general environment-land, air and water; human health; biodiversity and sustainable development. An important area or aspect of the contribution of mining to the degradation of the environment worth mentioning is the emerging issue of climate change and how climate change can impact on the mining sector.22 Consequently, a discourse of the projected or potential effects of climate change on the mining industry and the reverse effects of climate change on mining activities would, be considered in due course.
Against the above backdrop of the general impacts of mining on the environment, global, regional and national legal standards have been developed and complied with by the mining industry to address environmental impacts towards ensuring that mining becomes more sustainable and responsible in its contribution to development, especially Sustainable Development Goals (SDGs) today. At the global level numerous conventions, treaties and agreements including, but not limited to, the United Nations Conference on the Human Environment (Stockholm Convention) 1972, United Nations Conference on Environment and
Development (UNCED) 1992, United Nations Framework Convention on Climate Change (UNFCCC) 1992, United Nations Convention to Combat Desertification (UNCCD) 1996, Convention on Biological Diversity (CBD) 1992, Vienna Convention for the Protection of the Ozone Layer 1985, Montreal Protocol on Substances that Deplete the Ozone Layer 1987, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989 have been adopted by countries of the world, while other global goals (such as Millennium Development Goals 2000 which terminated in 2015 and Sustainable Development Goals23 which is the offshoot of the former) that impact on the environment in general and other aspects or sectors such as mining, in particular have been developed.
At the level of the Africa continent numerous germane efforts have also been made to prevent or mitigate the impacts of mining of minerals on the environment through the adoption of conventions and treaties by member states. Some of these include the African Charter on Human and peoples‟ Rights, Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa 1991 and the Revised African Convention on the Conservation of Nature and Natural Resources 2003.
At the sub-regional level, the Ecowas Treaty was entered in 1975 and revised in 1993. In the revised version, Chapter VI thereof,24 deals with co-operation on environment and natural resources. By Article 29(1) member states undertake to protect, preserve and enhance the natural environment of the region and co-operate in the event of natural disasters. Also, by Article 30(1) member states undertake individually and collectively, to take every appropriate step to prohibit the importation, transiting, dumping and burying of hazardous and toxic wastes in thei
respective territories; while Article 31(1) states that member states shall harmonise and co-ordinate their policies and programmes in the field of natural resources.
All of these conventions, treaties and agreements at the global, continental and regional levels have been articulated with a view to protect the environment from the impacts of mining, other activities that may constitute danger to health or environment and ensuring sustainability in the mining sector. However, to have the desired virile positive impacts, these conventions and treaties would have to be holistically domesticated by various national governments.
On this note, it needs to be reiterated that the mining industry’s potential for degrading the environment is recognized worldwide.25 But, despite the obvious disadvantages, man’s quest for development and improvement of his living conditions has led to the continuous exploitation of the world’s mineral resources with attendant negative consequences for the environment.26 In most parts of Nigeria, where mining of solid minerals has taken place or is still taking place, the environment is left un-reclaimed with its deleterious effects on human development. For example, “general land degradation is quite pronounced in some mining regions, typified by large stretches of the Jos Plateau where open cast mining has been on for several decades.27
Unlike in Europe and other advanced countries, the principle/practice of remediation is yet to be properly imbibed and adopted in Nigeria. There are plethora of laws, regulations, policies and guidelines relating to mining of solid minerals which are targeted at ensuring just and equitable exploitation of these mineral resources in Nigeria and for the protection of the environment; but compliance and enforcement regime have become issues of grave conce
In the circumstances of Nigeria, it is necessary to reflect on what efforts are being made to ensure sustainable exploitation and mining of resources in line with international standards and best practices in order to reduce or mitigate and, where possible completely prevent negative effects of mining of solid minerals on the environment.
The environment is the source of sustenance for mankind, and therefore, its degradation should be an issue of concern for all Nigerians since the effects and impact of a degraded environment on the economic, social, cultural, spiritual and political activities of the citizenry may be far reaching. The need to ensure sustainable mining in order to bequeath a balanced, healthful and harmonious environment to future generations is an obligation for all.28
This thesis appraises the various laws for the protection of the environment from mining activities of solid minerals in Nigeria and brings to fore, the challenges of environmental degradation and other risk factors that are associated with such exploitation. According to Ikhariale, “today the new world focus is on the need to revive the ailing earth whose only disease is a degraded environment.”29 It must be pungently stated, that a contributor to this malaise or disease of a degraded environment in Nigeria is mankind’s quest for development and sustainability through the exploitation and mining of solid minerals whose impact have been deleterious.
1.1.1 Brief Historical Development of Solid Minerals Mining in Nigeria
The history of mining of solid minerals in Nigeria is no doubt old. The Blacksmith industry is an offshoot of the mining of iron ore. Blacksmith industry commenced in Africa 1500 B.C and in the Nok area of present day Nigeria in 600 B.C.30The attempt to protect mankind from issues of environmental degradation and concerns which are largely as a result of man’s activities on the environment became most prominent with the quest for industrialization and economic development. These concerns were evident from numerous activities of mankind including those relating to the mining of solid minerals e.g iron, coal, gold, uranium, kaolin, tin and clay.
The world over, particularly in areas bestowed and blessed with one form of mineral resource or the other, some forms of mining activities were carried on by man in the past for the main purpose of improving his subsistence ways of livelihood. In Nigeria today, the mining of solid minerals is gaining prominence and its contribution to the Gross Domestic Product is slightly on the increase. In spite of this, it must be reiterated that the mining industry’s potential for degrading the environment is recognized worldwide.31
The historical perspective of environmental degradation by the mining of solid mineral resources in Nigeria can therefore be classified basically into viz- the pre-colonial period, the colonial era and post-independence era.
The pre-colonial mining activities in areas within the geographical entity now called Nigeria was regulated by the various native laws and customs of the people or communities within whose
territories those resources were found or embedded.32 Man being gregarious in nature and with un-quenching desire to conquer his environment, mined or exploited solid minerals for his multifarious needs including the mining of iron ore for use in the making of farm implements and war weapons; the smelting of bronze for use as utensils and ornaments for beautification, coal to provide the domestic needs of the various communities and kaolin for decoration and beautification amongst other uses.
The propensity of such mining activities to degrade the environment was least visible. This is as a result of numerous factors including the customs of the natives relating to the exploitation of these minerals (which sometimes established taboos for mining of such resources); and the fact that mining of solid minerals was carried out on a low scale during this period
The emphasis of mining was on catering for the basic needs of members of the community. Apart from the norms and customs of such communities which regulated the mining of such resources including the patterns of the harvest and sharing of proceeds, there were no codified laws and regulations governing the exploitation and exploration of those resources. This agrees with the main feature of customary laws which are largely unwritten or un-codified.
Traditional African societies including societies that conflated to become part of the present Nigerian nation had, as asserted by a scholar,
established institutional arrangements for the management of common property resources on behalf of the community. Both men and women enjoyed access, though limited by traditional taboos, beliefs and customs, to living and non-living resources. They enjoyed a life interest in these resources. Institutions were organized under Kingdoms, Chiefdoms and elders with their cultural taboos, norms, beliefs and ethics taking resource management considerations as dictated by and in harmony with the environment they lived in. Such practices were established to rationalize the use of a particular resource.33
The above postulation was amplified by the same author when he categorically enthused that: “generally, African societies lived in harmony with nature ensuring a balance between people and the environment. Environmental management was practiced, though rudimentary, to ensure sustainability of resources.”34
In 1860, King Docemo of Lagos ceded his chieftain territory to the British. This marked the beginning of the era of British colonialism in the area. Subsequently, the northern part of the country was administered as the Northern Protectorate and the southern part as the Southern Protectorate. This continued until 1914 when the Northern and Southern Protectorates were amalgamated to form a single geographical/political entity – Nigeria. The British colonial administration continued until 1960 when Nigeria became independent; and in 1963, the country assumed a republican status.35
Mining as a traditional industry thrived amongst the people of Nigeria well before the on-set (sic) of Western Civilization and the birth of Nigeria as a nation in 1914. However mining on a large commercial scale especially for export became prominent under colonial rule.36 In fact,mining of tin began in Nigeria in 1903-1904 in Jos.37
Upon the amalgamation of the two protectorates, mining of mineral resources was largely legislated upon with native communities only given a right to mine few mineral resources within their enclave and in respect of which they had rights to mine prior to colonial intervention in Nigeria.38
Up from the time of amalgamation of the two Protectorates of North and South in 1914 till about 1956 when oil was discovered in commercial quantity in Oloibiri in the present Rivers State of Nigeria, exportation of solid minerals together with cash crops constituted the main stay of the Nigerian economy.39
The exploitation of these solid minerals during the colonial era particularly was carried on without due consideration for the sustainable use of the resource and the environment. This was in spite of the factthat for example, the 1946 Ordinance contained measures aimed atenvironmental protection. At the inception of mining activities in Nigeria, the emphasis was not on environmental protection.40
Despite the inadequacies of the Minerals Act41, the Act contained some commendable provisions. For example the provision of the Act which recognized and preserved the rights of members of local communities to mine particular mineral resources within particular areas, if it were the custom of such communities to mine such minerals before the coming into effect of the Act. It was therefore expected that since such communities were accustomed to the mining of such mineral resources in the traditional and customary ways, the traditional ethos relating to such mining were deployed so as to avoid or mitigate environmental degradation by the mining of solid minerals in their various communities. For the purpose of appreciating the cultural and
historical antecedents respecting mining of solid minerals in Nigeria, the relevant provision of the Minerals Act, is reproduced below:
Nothing in this Ordinance contained shall be deemed to prevent any native of Nigeria from wining, subject to such conditions as may be prescribed, iron ore, salt, soda, potash or galena from lands (other than lands within the area of a mining lease or mining right) from which it has been since before the material date the customs of the members of the community to which he belongs to win the same.42
The colonial regime while attempting to bestow mining rights on local communities in respect of the mining of certain mineral resources, restricted and banned the local communities from being involved in the mining of some more commercially-beneficial mineral resources such as gold, diamond, coal, uranium etc (which had hitherto been their inalienable rights to mine).
In spite of the above, the provision, in addition to creating a sense of belonging to members of such local communities, preserved the mining culture of the people and their economic, social, customary and spiritual rights in respect of continued mining of such mineral resources. It is a matter of great concern that Nigerians during this period were deprived from the legitimate exploitation and use of the high earning mineral resources such as gold, diamond, columbite, tin, coal etc.44 These several decades of depravity may have constituted hindrance to the development of the full potentials of Nigerians particularly their innate desires to bequeath a virile and sustainable environment to future generations. This is even more worrisome, in the light of the fact that degraded mining sites were left unclaimed45 and un-mitigated.46
Federation of Nigeria, 2004 except that this latter Act removes iron ore from the list of minerals that could be mined by citizens in the light of its commercial and national importance.The mining of solid minerals in Nigeria, particularly from the time of colonial incursion by the British up to the early 1960s and even thereafter, continued to be carried on with resulting environmental degradation. The foregoing found corroboration in the submission of Akper, who asserted thus:
In the early 1960s when the level of environmental awareness was relatively low, very little was done to mitigate the adverse impacts of mining activity. But, with increased environmental awareness, a lot has been achieved in varying degrees across different jurisdictions to address the negative impacts associated with the exploitation of minerals.47
During the colonial era, protection of the Environment was not a priority and there was no realistic and pragmatic policy aimed at preserving and protecting the environment. Matters relating to the environment were dealt with as a tort of nuisance because disputes in environmental law were not viewed as public matters warranting state intervention. The few environment-related laws that existed criminalized activities that could degrade the environment. This is revealed in the Criminal Code Act of 1916, sections 245 and 241which prohibit water pollution and air pollution. The Act also creates the offence of nuisance.48
From the foregoing accounts, it is clear that the exploitation of mineral resources in Nigeria had been carried out without due regard to the environment. This legacy commenced from the period of colonial incursion into the geographical expression now known as Nigeria and continued even after Nigeria gained her independence in 1960 and thereafter. This was principally because the orientation and the structures set up by the colonial regime in respect of the policy direction and focus for the exploitation of solid mineral resources had not changed. There was no positive paradigm shift; the laws remained the same; for example the Mining Ordinance of 1946 was the extant law on mining of solid minerals and remained extant (except for some cosmetic changes) until it was repealed in 1999.
The above development, amongst other factors stagnated, the development of the industry even during the successive post-independence regimes in Nigeria. The activities and development of the solid mineral sub-sector deteriorated and stagnated with the discovery of oil in Nigeria;49 which practically led to the abandoning of main sectors of development to the detriment of the Nigerian economy and the citizens. As recounted by Osunbor50, the development of the industry stagnated and the robust earnings hitherto experienced shrank to the barest minimum.
An illustration of the state of our mines in Nigeria which arose largely from the unsustainable practices in the sector during the colonial era and the post-independence era was vividly captured by Osunbor, when he noted that “by the late 1980s the coal mines of Enugu had become flooded and fallen into neglect while the tin mines in Jos had all but ceased operations leaving behind a vastly devastated environment typified by a ravaged landscapedotted with man-made ponds and artificial lakes.”51
Given the above perspectives and background, the laws that have regulated the mining of solid minerals in Nigeria (and by implication, the impact of environmental degradation by the mining of solid minerals in Nigeria) taking into consideration the nature, character and structure of institutions developed can also be categorized into two, namely, the pre-1988 laws and the post-1988 laws. The year 1988 is critical in the light of the dumping of toxic waste in the coastal town of Koko, old Bendel State by an Italian company.52 This propelled series of reactive legislations and began to engrain in Nigerians the precept of environmental consciousness and awareness.
The Mining Ordinance, 194653 contained measures aimed at environmental protection.54 Categorically, the Ordinance made provisions, albeit scanty, for environmental protection, it has been noted that the measures adopted by the Ordinance were mainly curative measures rather than preventive measures, while compliance with the monitoring processes were not followed up and enforced.55
This Ordinance was however, also devoid of the basic consideration of ensuring that the localities and communities within Nigeria where these mining of solid mineral activities took place benefited in terms of giving back to them what is due by adopting remedies, including environmental remediation, restoration, resuscitation and rehabilitation and also ensuring that the people continued to live in harmony with the environment. The patched environment and mining sites of Enugu, Jos and several other places in Nigeria leave behind the sordid memory of the deleterious effects of mining of solid minerals in those areas.
The result was that environmental degradation was rife and the degraded environment by the mining of solid minerals in parts of Nigeria remained un-remedied with obvious negative implications for the lives, earnings, health, procreative rights and sustainable development of members of such societies and indeed the Nigerian nation.
This same period was further characterized by the fact that laws could not protect the environment as it related most especially to the negative effects that trailed the mining of these solid mineral resources. It will be difficult to find in the law books during this period, any decided case where the issues canvassed were determination of rights and obligations of the
indigenous societies or people pertaining to the crucial issue of making habitable or sustainable again, the degraded mining sites arising from the mining of solid minerals. It is opined, that the lack of cases in the aforesaid area was not as a result of absence of issues warranting the pursuit of the rights of members of such mining communities, but the lack of such cases may be traceable apathy of the citizenry, the domineering attitude of the colonial regime, its officers, servants and privies over members of local host mining communities and the rudimentary state of legislations.
The significance of the developments relating to post-1988 era and the gains made in environmental law evolution in Nigeria is traceable to the dumping of toxic waste on Koko town in the old Bendel State of Nigeria by an Italian firm in 1988.56 This triggered a chain of events including some level of awareness on the part of Government, the citizens and other stakeholders.
Consequent upon the above development and the increasing awareness on the part of stakeholders, Governments have consciously made efforts at ensuring the sustainable development of all sectors including the mining sector such that the propensity of the activities of miners to cause humungous environmental degradation by the mining of solid minerals in Nigeria is reduced and mitigated; and where environmental damage and degradation occur, steps should be taken to remediate, restore, reclaim or rehabilitate the environment particularly mining sites as appear most practicable. As noted by Akper,
Government’s response to the problems of the mining industry in the last decade has generally followed global trends. The National Policy on Solid Minerals Development of 1971 was reviewed and a new Policy of Solid Minerals Development of 1999 was launched. The 1999 Policy had in line with global trends emphasized environment friendly mining operations and generally prioritized environmental concerns to a level that was not done before.57
In 1995, the Military administration created for the first time in the nation’s history, a Ministry known as the “Ministry of Solid Minerals Development” dedicated to superintending over the development of solid minerals in Nigeria. Although, the entire mineral resources in the Federation are vested in the Government of the Federation,58some States have created Ministries of Solid Minerals to promote the exploitation of the mineral endowments in their States.59
Prior to the enactment of the Nigerian Minerals and Mining Act (N.M.M.A) and the National Environmental Standards Regulatory Establishment Authority Act (NESREA Act) it could be safely asserted that the 1990s witnessed the era of significant amendment, revision and formulation of instruments of intervention to halt environmental degradation in Nigeria in the form of regulations, guidelines, standards and policy.60 This period witnessed tremendous awareness in the solid minerals sector.
AN APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR REGULATING THE IMPACTS OF MINING OF MINERALS ON THE ENVIRONMENT IN NIGERIA
1.2 Statement of the Problem
The environment provides mankind with the means of development and survival. Mankind being gregarious is wont to explore the environment for the purpose of sustenance and in the quest for economic, socio-political and technological advancement. The environment is endowed with various types of resources and mankind has, and will continue to take steps and measures to exploit these resources. No matter the method and technology in use, mineral mining generally has some damaging effects on the environment.61 The exploitation of solid minerals impacts negatively on the environment thereby constituting challenges of environmental degradation and
pollution with its resultant negative effects on human activities, livelihood and development. The problems identified in this research are:
- Inadequacy in the underlying provisions of some of the legal, regulatory and institutional framework in protecting the environment against the negative impacts of mining activities in Nigeria. Examples of this include the provisions of section 90(2) of the Nigerian Minerals and Mining Act (hereinafter referred to as “the N.M.M.A”) which used the nebulous phrase “proportionate to their profits” in mandating that all leaseholders should carry out effective rehabilitation of mined out areas to the satisfaction of the Mines Environmental Compliance Department of the Federal
Ministry of Mines and Steel Development (hereinafter referred to as “MECDepartment”). Another one is the provisions of sections 46 and 131 of the N.M.M.A which created the offence of illegal mining without making provisions for punishment in section 131 of the N.M.M.A.
- Poor enforcement and non-compliance or poor monitoring of compliance with environmental regulations and standards/guidelines. This is aided by contradictions within and between laws and the more important fact that compliance with the provisions of laws is not carried out by institutions charged with such functions. An example is the fact that mining activities are still carried on by some operators without carrying out the requisite environmental impact assessment.
- Unregulated or illegal mining activities by unlicensed and artisan miners that exacerbate environmental degradation and health hazards to vulnerable communities and resulting in loss of revenue to government. The activities of unregulated or illegal mining still persist with many of such sites abandoned and constituting threat to lives.
Examples are many mining sites in the Jos-plateau axis62 and as would be found further narrated in this thesis.
- Mining sites are left degraded with the aesthetic beauty and stability of the land destroyed,63 resulting in loss of opportunities (loss of vegetation, agricultural farming lands64 and endangered animal species)65 and revenue to Nigerians and the government.66Furthermore, a lot of mining sites have been left un-mitigated,67 unclaimed,68 un-restored, UN-remediated and un-rehabilitated with propensity for
accidents and loss of lives and animals.Against the foregoing statements of problems, the following research questions have therefore been postulated
- Are the legal and institutional/regulatory mechanisms for monitoring compliance with environmental standards and guidelines by mining operators, licensees or leases adequate?
- Are the existing legal and institutional frameworks robust to cater or support mining of minerals in such away as to prevent or mitigate the negative impacts of mining of solid minerals on the environment in Nigeria?
- Do mining of solid minerals have impacts on the environment in Nigeria?
- Do illegal miners contribute to environmental degradation by their mining activities?
- Are there problems and challenges in the effective enforcement of mining and environmental laws and regulations in the mining sector in Nigeria?
- Are measures of remediation, restoration, resuscitation, rehabilitation, reclamation and compensation being adopted as panacea to ameliorate or mitigate the challenges of the impacts of mining on the environment in Nigeria?
- Is there an integrated mechanism to promote a balanced framework for achieving the economic, social and environmental dimension of sustainable development (through regulated and responsible mining) in Nigeria?
- What measures should be adopted to prevent, mitigate or reduce the negative impacts of mining of solid minerals on the environment in Nigeria with a view to contributing to a more harmonious, ecologically balanced and sustainable environment in Nigeria?
1.3 Aim and Objectives
The aim of this research is to appraise the role of legal and institutional framework in minimizing or mitigating the negative impacts/effects of mining of minerals on the environment through responsible and sustainable mining operations/activities in Nigeria.
The objectives of this research are the following:
- Appraising the performance of the legal, institutional/regulatory mechanisms in monitoring compliance with environmental standards and guidelines by mining operators, licensees or leases.
- Identify and analyses the problems and challenges in the effective enforcement of mining and environmental laws and regulations in the mining industry in Nigeria.
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1.4 Scope of the Research
This research centers on the impacts of mining activities on the environment in Nigeria; hence relevant laws, regulations, policies and guidelines underpinning the subject matter of this thesis including relevant institutions established on the subject matter, would be considered. It must however be noted that this thesis relates to mining of solid mineral resources and therefore mining of petroleum and gas resources are excluded from its scope.
The legislation for consideration and review is the Nigerian Minerals and Mining Act70which said legislation together with other relevant legislations, regulations and policies will be espoused in this research work. To that extent, the study is further circumscribed by the applicable laws or legislations, regulations and policies in context. The provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)71as it relates to mining and mineral resources has also been appraised to further put the research subject in proper perspectives. Some other legislations, regulations and policies taken into account in this research work, include National Environmental Standards and Regulations Enforcement Agency (Establishment) Act72, Environmental Impact Assessment Act73, Nuclear Safety and Radiation Protection Act74, Explosives Act75, Harmful Waste (Special Criminal Provisions) Act76, Land Use Act77, Labour Act78, Nigerian Minerals and Mining Regulations 2011, National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulation 2009, National Environmental (Quarrying and Blasting Operations) Regulations 2013, National Environmental (Sanitation and Wastes Control) Regulations 2009, National Minerals and Mining Policy, 2008 and all other relevant legislations, regulations and policies appertaining to this area of study.
1.5 Justification of the Study
In Nigeria today, the place of solid minerals exploitation or mining in the development of the country is becoming more apparent. This research will assist the federal government in articulating improved legal and institutional framework on mining of minerals for the country; with focus on how to better mitigate the impacts of mining on the environment. The work will also benefit state governments as it will enable them have enhanced cooperation with other relevant stakeholders towards contributing to the mitigation of the impacts of mining on the environments of local mining communities within their territories.
It will assist economists in itemizing strategies that could ensure improved contribution of the sector to the GDP, national growth and development; while at the same time making stakeholders to better appreciate the gaps in the legal and regulatory framework underpinning the study thus making it easier to articulate proposals for review towards attaining mining sustainability.
Environmentalists are another catchment of society to benefit from this research as it will assist them in appreciating the environmental dynamics and challenges of the impact of mining on the environment as it relates to Nigeria; and to strategize on how best to ensure that the environment is restored after mining activities. Law makers (legislators) particularly in the National Assembly are another very important category of stakeholders to benefit from this study because the study would afford them a robust perspectives towards canvassing for and amending the existing legal and institutional framework for attaining sustainable development in sector.
Furthermore, academicians and researchers could use it as reference material for contributing to knowledge; and for the Federal Ministry of Mines and Steel Development, the Federal Ministry of Environment, Housing and Urban Development, National Environmental Standards Regulatory Establishment Agency, Mining Cadastre Office it will assist them in discovering gaps in their enabling laws and afford them the opportunity to improve their regulatory and enforcement roles.
1.6 Methodology of the Study
The methodology of this research work is a combination of doctrinal and empirical methods. Under the doctrinal method, the main primary source of documents analysed, include the Constitution of the Federal Republic of Nigeria, Nigerian Minerals and Mining Act,
Environmental Impact Assessment Act, and the National Environmental Standards Regulatory Agency Act, as would be subsequently highlighted and discussed in this thesis. The secondary source of documents used for the research under the doctrinal method, include published and unpublished works of scholars in this relevant area. These are for example books, journals, articles, seminar papers, dissertation/thesis, newspapers and magazines.
Under the empirical method, the source of data were the questionnaires administered and interview of relevant stakeholders conducted to find out more about the subject of the research or clarify certain aspects of this work.In terms of the research design, descriptive research design was adopted for this study. The researcher used survey questionnaire to solicit information where the respondentsof some host mining communities in Plateau, Zamfara, Kogi and Niger States; the Federal Ministry of Mines and Steel Development and National Environmental Standards Regulations Enforcement Agency were asked to answer to questions based on their level of the agreement or disagreement to each of the questions in relevant questionnaire For sampling technique, non-probability convenience sampling was used by the researcher to collect needed information from respondents. The study used the formula given by Rose, Spinks and Canhoto (2015) for an infinite population to determine the sample size. The minimum sample size for this study is 400 basedon the questionnaire administered on host mining communities. However, 20% was added to the minimum sample size of 400 for attrition to make it 480. 480 copies of the questionnaires were distributed to the respondents. A total number of 480 copies of the questionnaire were distributed to respondents of host mining communities and 426 copies were returned, constituting 88.75% response rate.
These were found to be valid and useful for the analysis. Therefore, the researcher did not fall below the minimum sample size of this study which is 400.Similarly, the same approach was adopted in respect of the questionnaire administered on staff of the Federal Ministry of Mines and Steel Development and National Environmental Standards Regulations and Enforcement Agency at their head offices.The population of this part of the study consists of 130 staff of two government institutions (70 staff of Federal Ministry of Mines and Steel Development and 60 staff of National Environmental Standards Regulations Enforcement Agency).
The minimum sample size for this study is 98. However, 20% was added to the minimum sample size for attrition, thus making it 118. 118 copies of the questionnaires were distributed to the respondents. A total number of 118 copies of the questionnaire were distributed to respondents and 102 copies were returned, constituting 86.44% response rate. These were found to be valid and useful for the analysis. Therefore, the researcher did not fall below the minimum sample size of this study which is 98.
1.7 Literature Review
There are numerous relevant previous works by various scholars on the subject matter which in one way or the other contributed to knowledge in this area of study. This work proceeds to examine and evaluate the adequacy or otherwise of some of the previous works on this subject area of interest. Mobtaker&Osanloo79in introducing the work stated that mining operations provide essential materials for industry and it is one of the critical aspects of economic growth in the world as it inter alia provides jobs in the mining regions; stressing that if mining goes right on the way of sustainable development, positive impacts of mining are more considerable.80The authors expressed the view that the main question in mining is what sustainability really means and whether it can ever be realistically achieved in the context of mining.
The further considered “modern mining” and its contribution to sustainable development pointing out that the overall sequence of activities in modern mining are divided into sixstages of prospecting, exploration, development, exploitation, mine closure and mine reclamation.81The positive impacts of mining could be on the environment- land, water and air; andalso, thesociety and economy of the mining region. As it relates to land, the work asserted that mineral deposits commonly happen where there is no trace of life or civilization. Mining brings life to the area and provides better life situation by making available road, power, groundwater, health centres and schools. In addition, after mine reclamation, the goal of landscape improvement, access and land stability will be completely achieved.82
On the impacts of mining on air and water, the work took into account the issues of global warming and climate change and the raising levels of CO2 concentration.In order to have positive impacts of mining on air resource, the work encouraged the use of renewable energy and application of agriculture approach for mine reclamation plan.83 Water is fundamental to life.
Mining is one of few industries that is able to use water of lower quality than that desirable for human consumption, water management in the mining industry is the key way to achieve positive sustainable development.As it relates to the social and economic impacts of mining on the environment, the authors posited that the most important impact of mining in mine area is providing job opportunity, livelihood and longer life expectancy. Also, landuse such as park, lake and golf course provide entertainment for people.
85The mining industry is a major force in the world economy. However, its role in contributing to the national economies of different countries varies greatly and is neither well documented norwell understood.According to the World Bank report in 2012, mining contribution in GDP in countries are: Iran 1.3%, Australia 7.8% and China 1.2%.86
As much as the foregoing work hasbeen insightful, the background of the work and the examples cited are mostly within the domain of foreign countries without experiences from Nigeria. This research would consider the legal and institutional focus for regulating the impacts of mining on the environment in Nigeria.
Musa &Jiya87 in their work stated that in mining of tin, the vegetal cover in the area of mining has to be removed which consequently results into adverse environmental effects. The impact of tin mining greatly affected the natural ecology of Bukuru because micro and macro organisms and plants have been stripped off their natural habitat due to tin mining activities. Normalized Differential Vegetation Index techniques were adoptedto map effect of tin mining on the
vegetation for the period between 1975 and 2017. The result of the differential vegetation index reveals a decline in vegetated surface due to intensive mining and cultivation.According to the authors, mining and processing has led to socio-economic and infrastructural development of the Jos area, with major negative impacts on physical, biological andhydrological environments. Similar negative impacts are widespread in most other small-scale, largely illegal mining areas in Nigeria.89Furthermore, the work underscored the importance of environment to sustainable development while emphasizing that environmental degradation is a very serious issue and to ignore the environment, is to ignore our humanity and surrender its race that is entirely dependent on it.90
The work further stated that the study area is characterized by abandoned mining ditches, from mining the tin ore, pathetic and deplorable condition of landscape/landcover.91It recommended sustainable mining practices such as monitoring of mining sites/activities, determining their environmental damages andthe adoption of mitigating measures anduse of modern technology as panaceas of the negative impacts of mining on the environment.
The abovework is no doubt relevant but its scope appear to be limited as it did not consider the legal and institutional framework regulating or underpinning the impacts of mining on the environment in Nigeria. This researcher would make forays into such issues in order to broaden the perspective on the subject of impacts of mining on the environment in Nigeria.
In another contribution92an over view of Nigerian mining sector was provided. It was stated that in 2015, the contribution of the sector to the economy was at between 0.5%-0.6% of the Country‟s GDP.93Government‟s efforts at diversifying the economy by enacting laws such as the Nigerian Minerals and Mining Act, 2007, the creation of the Federal Ministry of Mines and Steel Development and the establishment of Solid Minerals Development Fund were also harped upon. Also, landmark events in the sector were highlighted to include mining of Tin ore by Royal Niger Co. in 1905, commencement of coal mining in Enugu in 1914, mining of gold in 1914 in areas that are now known as Niger and Kogi States, establishment of Nigerian Coal Corporation in 1950, the establishment of Makeri Smelter in Jos in 1961. Direct participation by government started in 1972 following the promulgation of the indigenisation Decree of that year, the Nigerian Mining Company was also established in that year while in 1979, Ajaokuta Steel Company and Delta Steel Company were established.94
Some of the challenges of the sector were stated to include under-reporting production by existing firms and the fact that most of Nigeria‟s mineral production is conducted by artisanal and small scale miners whose production figures are under estimated. It was asserted that Government has put in place a favourable climate for business and ventures by inter alia stream lining administrative and bureaucratic procedures, policies and programmes to guarantee a free market economy.
The work further considered mineral title administration by Mining Cadastre Office (hereinafter referred to as “MCO”), licence types, purpose and duration. Licence conditions were also highlighted. Taxes, loyalties and fees applicable in the sector, were also identified. Some other challenges of the sector were stated to include inadequate sources of finance for mining projects, infrastructure development, security, illegal mining and community challenges, resolving regulatory conflicts, improving policy consistency and enforcement of regulations and the need for industry participants to attract majors into the industry, promoting juniors through expanding access. Strategies for development of the sector were also canvassed to include the necessity to integrate artisanal and small scale miners into the sector, improving their productivity/social wellbeing through formalisation of associations into cooperatives etc.
The gap observed from the work is that it did not consider in appreciable details, the legal and institutional framework underpinning the subject of the impact of mining on the environment. Therefore, the gaps inherent in the legal and institutional framework could not be provided; so also is the role of the various laws and institutions in regulating the impacts of mining on the environment was another lacuna noticed from the work.
Ladan,95in his recent contributions under a sub-topic “Overview of Mining and Mineral Resources Law” analysed the provisions of the principal legislation on the subject matter being the Nigerian Minerals and Mining Act, 2007 bringing in focus particularly the following issues viz: The definition of relevant terms such as Mineral Resources or Minerals, Security Minerals, Mineral Exploitation, Mineral title, Mine, Mining Operations, Holder of mineral title, Petroleum, Pollution, Processing, Reconnaisance and Quarry. The work also considered the structural lay out of the provisions of the N.M.M.A and outlined the provisions under each chapter and parts of the N.M.M.A; and in analysing the provisions of section 1 of the N.M.M.A inter alia stated that “All lands in which minerals have been found in commercial quantities shall, from the commencement of this Act be acquired by government of the federation in accordance with the
provisions of the Land Use Act.”96 The author also referred to the provision of section 3 of the N.M.M.A and stated lands excluded from reconnaissance, exploration and exploitation of mineral resources to be viz; land set aside for, or used for or appropriated or dedicated to any military purpose except with the prior approval of the President, land within fifty metres of an oil pipeline license area granted under the Oil Pipeline Act, land over which a mineral title has previously been granted by the Mining Castrate Office and where such mineral title is subsisting.
Furthermore, the author discussed the overview of Mining and Minerals Regulations, 2011 issued by the Minister of Mines and Steel Development in exercise of the powers conferred on him by section 21 of the Nigerian Minerals and Mining Act, 2007. The structure of the regulations and its provisions were highlighted. The contribution also considered and discussed the provisions of National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations 2009, National Environmental (Base Metals, Iron and Steel Manufacturing/Recycling Industries Sector) Regulations, 2011 and National Environmental (Quarrying and Blasting Operations) Regulations, 2013.
The work also examined the National Policy on Mineral Resources. The main purpose of the policy was stated to include achieving substantial increase in GDP contribution by the minerals sector and formalising artisanal and small scale mining operations. The basis for action were enumerated and few of this include; the need to develop a business environment where the private sector will flourish, the need for re-emphasising on the separation of roles of government as the Regulator and administrator from that of the private sector as the operator of mineral
The work further examined the Departments and Agencies of the Federal Ministry of Mines and Steel Development; the particular departments considered are the Mines Inspectorate Department, Mines Environmental Compliance Department, Artisanal and Small-Scale Mining Department and Mining Cadastre Office stating their specific objectives towards attaining their mandates. A myriad of issues including fiscal policy and its characteristics, capacity building, research and development were also covered. A detailed overview of the National Metals Policy was undertaken in the work.
The scholar and author posited that” industries are essential for economic development but are also known to cause adverse environmental challenges due to the production and release of harmful wastes, effluents and toxic by-products into the environment”.98 This statement also applies to virtually all stages or segments of the mineral extraction chain. Furthermore, as asserted in the work under review, the processing of minerals and metals are largely known to produce among others the following categories of contaminants: a) Air pollutants: corrosive and hazardous gaseous, fumes and particulates; b) Volatiles such as tar fumes, aromatic hydrocarbons, etc; dust; d) Non bio-degradable solid wastes (slag and dross); e) Radio-active wastes; f) Noise and heat beyond endurance limit.99The work proffered some interventionist strategies for mitigating the impact of mining activities on the environment.
Furthermore, a composite analysis of some solid mineral resources in Nigeria and the parts of the country they are found and mined was undertaken. Issues and concerns relating to the activitiesof the sector and their impact on the environment were adumbrated to include viz; health, environmental degradation, water pollution, impact on agriculture, loss of means of livelihood and income and lack of accountability
The few issues noticed with the work is that because of a myriad of very important subjects considered in the work, attention was not devoted to the discussion of issues of Community Development Agreements and dispute resolution mechanisms and their likely effects in mitigating the impacts of mining of minerals on the environment in Nigeria.
Gyang&Ashano100posited that tin mining flourished in the study area from the beginning of the century to the early 1980‟s andleft behinda post-mining environment scarred by numerous mineponds anddams surrounded by heaps of mine spoils (dumps/overburden) and devastated landscape. The tin mining industry on the Jos Plateau hascaused extensive man made environmental damage, with vast tracksof pastoral land systematically destroyed in the quest forcassiterite and columbite, with increased radioactive waste as a result of dumping of mine tailings and several heaps of mine dumps (overburden) and also mine ponds scattered all over the area. These mine ponds have resulted in several deaths.101Mines, both active and inactive are potential water contamination sources. The mining excavations create direct connection between ground water and the land surface. Oxidation of exposed minerals can lead to acid drainage, while leaching of heavy metals is a threat. Drainage of materials from abandoned mines can act as ground contamination source for years after mining operations have stopped.
The work concluded inter alia that the majorproblem observed from the studies, is the several abandoned mine ponds and heaps of mine spoils that abound in the projectarea which defaces the scenic beauty as well as serving as death traps for both humans 103andanimals. It was recommended that environmental hazards can be reduced by adapting best mining practice such as mine reclamation, proper disposal of mine wastes, proper planning of mines to minimize amount of hazardous wastes, remediation and sustainable land use, enforcement of mining laws to ensure compliance and prevent future unwholesome practices.104
The work under review provided some of the impacts of mining of minerals on the environment. It however, did not consider relevant laws and institutions put in place to regulate the impacts of mining on the environment in Nigeria. Also, methods available within our laws for regulating the impacts on the environment were not discussed.Consequently, this researcher would fill the observe gaps through the myriad of issues discussed.
Merem,105 the research examined the ecological impacts of mining in West Africa with focus on Nigeria. The work was buttressed with relevant examples of mining and its incidents in several parts of the country. It was posited that the heavy toll of mining on the environment came with the decline in forest land area in Bukuru, Plateau State, where forest area of 420.52km2 in 1975 fell to 399.56km2 by 1986.106 The downward slide continued almost 20years after in 2005 with only 155.63km2 area left with green cover.107
The authors asserted that many have noted that a sustained solid mineralsindustry provides a pathway for the rapid development of Nigeria throughthe generation of employment and
improved national income earnings at levels higher than the petroleum industry. In all these, the opportunities in the solid minerals sector of Nigeria remains enormous all these, the opportunities in the solid minerals sector of Nigeria remains enormous bearing in mind the expansive areas of unexplored minerals potential.108 These prospects are new for Nigeria, because for over four decades ago, the revenues from solid minerals financed many government programmes in the form of infrastructural development, education, healthcare and the emergence of the petroleum industry under the nation‟s development plans.109
For example, between 1965 and 1975, the exploitation of some of the minerals occurring in Nigeria contributed over 12% of the nation‟s GDP.110In the context of economic contribution, the minerals sector has made some strides and the sector has been projected to account for 10% of the GDP by 2020.111 With these potentials come thousands of abandoned mines and tailings ponds scattered in many areas of the country, threatening the fragile ecosystems along side endless degradation of air, land and water and human facilities in areas adjacent to mining sites.112
The work further considered the ecological impacts of illegal mining whilestating that by 1992-1998 through 2000 areas under illegal mining in km2in Pandongari increased geometrically at rates of 642.86 to 1,042.86%. 113 The negative impacts of mining were summarise to include numerous abandoned mine sites, concentration of toxic residues from zinc, destruction of flora and fauna, pollution of air, degradation of arable land, habitat loss and contamination of water resources.114 The authors also posited that the other burden of pollution risks involve the 1,000 abandoned mine ponds, alongside 1,100 – 4,000 tin and columbite mines left behind from the mining booms of past eras in the 1960s and spread over Jos, Plateau. These threats are compounded further by the 400 fatalities from lead poisoning triggered by illegal quarrying in Zamfara in 2010.115
Some of the problems of the sector were identified by the authors to include the activities of informal/illegal miners, ineffective policy and lack of records on mining activities. The work recommended education and social programmes, policy enhancement, solid minerals mapping and information system and regular assessment of ecological liabilities as panaceas.116
The above work no doubt dwelt on relevant issues relating importance of mining to economic development and also, the impact of mining activities on the environment. The work however did not consider in details the legal and institutional mechanisms or framework for regulating the impacts of mining on the environment in Nigeria. Furthermore the place of community development agreements and analysis of legal responses to environmental degradation by mining were not discussed in the work. The observed areas not considered would be filled in this thesis.
Lar,117the author stated that the concentration levels of trace elements in drinking water and food pose potential health risk to man and therefore require great attention. Miningand mineral processing predisposes trace elements to weathering whereby they are released into the environment in the soil and water bodies. In addition, high levels of these elements from anthropogenic sources have also been reported in soils and water in most mining/mineral
processing sites and urban centers.118 Most elements are taken into human body in air, food and water. The distribution of elements either by natural and/or anthropogenic sources poses potential health dangers to man and therefore require great attention.119The level of trace element concentrations in mining sites in Nigeria andtheir effects particularly gold mining in Zamfara State, with emphasis on Bagega and Anka; galena mining at Zurak; tin mining in Jos Plateau; Enugu coal mine; abandoned Enyigba lead and zinc mines; Itakpe iron ore mine and Sagamu limestone mining were examined and analyzed.120
The above work is relevant in appraising the impacts ofmining of minerals in Nigeria. The scope of the issues discussed in the work when viewed against this thesis were discovered to be limited in the light of the fact that the work did not examine the legal and institutional framework for regulating the impacts of mining on the environment in Nigeria. This observation would be brought into focus and considered in this thesis.
Adefulu,121 in discussing an overview of the Nigerian Minerals and Mining Act, 2007 inter alia considered the issues of ownership and control of mineral resources, revocation of titles by Governors in respect of areas where minerals are discovered, the status of holders of mineral titles granted under the repealed Minerals and Mining Act, No. 34 of 1999; the powers of the minister in the administration of the Act, the departments of the Federal Ministry of Mines and Steel Development, the creation of the Mining Cadastre Office and its functions.
The work also detailed some of the requirements for commencement of development on mining lease area to include the submission of environmental impact assessment study and mitigation plans to the MEC department, submission of details of work to be carried out to the Mines Inspectorate Department of the Federal Ministry of Mines and Steel Development (hereinafter referred to as “MID”) and conclusion of Community Development Agreement approved by MEC department. Also discussed are issues of rights of leasee to remove fixtures after mining operations, mining incentives, possession and purchase of minerals, environmental considerations and rights of host communities, offences and penalties. On this last item, the author asserted that “this chapter provides for penalties to offences including (illegal mining, false and misleading statements in applications for mineral title, false or non-declaration of important information, smuggling of minerals, use of false or fraudulent scales, misrepresentation and unlawful interference or obstruction”.
Some of the challenges of the work is that it stated that the N.M.M.A provided punishment for illegal mining without stating which section of the Act penalised the act of illegal mining. Though, sections 46 and 131 created the offence of illegal mining but section 133 which provided penal regime for several offences recounted by the author above, did not seem to have specified the penalty for illegal mining. The work did not also examine or “x-ray” the vicissitudes of the impact of mining on the environment.
In another recent work,122it was underscored that Nigeria is richly endowed with vast mineral resources that are widely distributed across the Country.123Mining is done virtually in all states of the federation. Mining industry was viewed as key driver of economic growth and development, with coal and tin ranked high as Nigeria‟s foreign exchange earner during the colonial era and after Nigeria‟s independence but the growth of the industry was hampered by
discovery of oil in 1956 and the oil gut of the 1970s and the 1980s; thus resulting in the decline of overall contribution of mining to national GDP to about 0.5% in 2009.The collapse of the oil sector, unemployment, global economic recession were mentioned as factors that reawakened government‟s diversification efforts and therefore, agencies were set up and laws enacted to enhance the contribution of the sector to GDP. The writers further asserted that the domestic mining industry is underdeveloped leading to the country importing minerals that could be produced domestically because of over-dependence on oil. Inadequate legislation and poor enforcement of law were related to have made the sector to be largely informal and inefficient. The problems of environmental degradation and jurisdictional conflicts between federal and state governments were further highlighted.124
The crucial and continued relevance of the sector to economic development, wealth creation and poverty alleviation was underscored while economic theories, concepts, principles and analysis of data were undertaken to engrain the contribution of mining to the sector. The work concluded that government should come out with stable ground laws that will create the enabling environment for the private sector to invest more in the mining sector while the government ensures transparency, accountability and monitoring of compliance with mining laws and regulations so that the mining sector could be used to create jobs and wealth for the country and as well contribute to the diversification of the economy.
The gap noticed from the work is that though its principal theme is the contribution of the sector to the diversification of the economy through mining, a consideration or discussion of the legal and institutional framework for attaining this lofty objective may have also being of utility.
Furthermore, diversifying the economy through mining would require an insight into dispute resolution mechanisms, compensation regimes and the integration of the concept of community development agreements in the mining industry.
Ogu125, in his contribution, reviewed the provisions of sections 4 and 44(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 1(1) of the Nigerian Minerals and Mining Act which vests ownership of mineral resources in the Federal Government of Nigeria. The work articulated issues of reforms in the sector from 2005 to include transformation of the role of government from owner-operator to administrator-regulator, the creation of unique role for private sector as operator/owner of mining resources upon conferment of title, the revitalization of mining institutions necessary to regulate the sector, establishment of the Mining Cadastre Office, stemming of informal mining activities and encouraging small scale mining to promote sustainable exploitation within artisanal mining communities.
Some key concepts of the N.M.M.A were highlighted and they include access to mineral titles being open to all that meet relevant requirements, guaranteed security of minerals, use it or lose it, creation of Mineral Resources Management Committee (Miremco) and its roles;, and the recognition of artisanal and small scale miners. The work also articulated the administration/institutional framework of the sector and highlighted the powers and functions of the minister, compensation and its ramification; Community Development Agreement and its ingredients. Concluding the work, the Nigerian Minerals and Mining Policy, 2008 and Nigerian Minerals and Mining Regulations, 2011 were mentioned as part of the legal frame work underpinning the sector while tax/investment incentives/reliefs were succinctly articulated.
125Ogu, O.B., “Regulatory Policy Development: Reform Process and the Minerals and mining Act, 2007. Workshop on Investment Opportunities in the Nigerian Mining Sector held at Shehu Musa Yar‟dua Conference Centre, Abuja on 30th January, 2012 In reviewing the work, it was observed that most of the reforms pointed out took footage following the enactment of the Nigerian Minerals and Mining Act in 2007; although some background efforts may have began in 2005.
For example the transformation of the roles of government and the private sector, establishment of Mining Cadastre office etc received blessings and have their legal basis in the Act enacted in 2007. Also, like the previous works examined above, aside from considering the legal and institutional framework, this one did not evaluate the dynamics of the impact of mining of solid minerals on the environment. The other lacuna is that even references to the legal and institutional frameworks were not exhaustive nor were they considered in great and relevant details.
Ajayi, Salami and Babem126 asserted that Nigeria is endowed with vast reserves of solid minerals including but not limited to precious metals, stones and industrial minerals. It also provided an overview of solid minerals and types found in Nigeria (stating there are 40 of them). It was asserted that mining of these minerals took a down turn inter alia because, of the discovery of oil in Nigeria. New efforts to revitalise the sector resulted in the enactment of the Nigerian Minerals and mining Act, 2007 (NMMA). Legal and regulatory framework, were enunciated as N.M.M.A, National (sic) Minerals and Metals Policy, and the Minerals and mining Regulation.
According to the author, the administration of the mining industry is vested in the Federal Ministry of Mines and Steel Development and its departments which were listed to be Mines Inspectorate Department (MID), Mines Environmental Compliance Department (MEC), Mining Cadastre Office (MCO) and Artisanal and Small Scale Mining Department (ASMD); their functions were also stated.
The work discussed the types of mineral titles and licences available in Nigeria, positing that all mineral titles with the exception of Reconnaisance Permit (RP) are transferrable under the Act subject to the approval of the Minister and the registration of the transfer with the MCO. The regime of taxes, royalties and fees as applicable to the mining sector were articulated to include Company income Tax, Personal Income Tax, Education Tax, Capital Gains Tax, Stamp duties, Withholding Tax, Royalty, Annual Service Fee, Annual Surface Rent.
Applicable incentives under the Mining Act were stated to include viz: Tax holiday, retention of part of foreign exchange earnings in a domiciliary account as applicable to exporters of mineral products, exemption from customs and import duties in respect of importation of equipment, free transferability of foreign exchange through the Central Bank of Nigeria, grant of personal remittance for expatriate personnel free from any tax, actual amount incurred out of reserves made for environmental protection, mine rehabilitation, reclamation and mine closure cost.
The scholars adumbrated the challenges in the mining industry to include project funding and the reluctance of multinational corporations to fund or invest in the sector owing to slow implementation by the federal government of its reform agenda, infrastructure development challenges such as electricity, lack of access roads to mineral sites, security challenges (though not of magnitude to discourage investors in the sector) and illegal mining and community challenges.
Some of the gaps found in the work include the non-mention or reference to relevant sections of extant laws particularly, the Nigerian Minerals and Mining Act to give fillip to the work; The work did not also consider the impacts of mining on the environment In the contribution of Oladunjoye and Okonkwo,127mineral resources create potential opportunities for national development and the neglect of solid minerals sector had negative effects on the economy. It was posited that mining and quarry sector accounted for 9.12% growth of Real GDP of the Country in the fourth quarter of 2014 with coal mining, quarrying and other minerals leading the growth.
It was underscored that efforts were made to refocus on the nation‟s solid minerals sector, considering the potentials of the industry in becoming a viable alternative foreign exchange earner in Nigeria but infrastructural deficits and insufficient capitalization remained bane to the rejuvenation of the solid minerals industry in Nigeria.
An overview of the mining legal framework was considered and core legislations were stated to be N.M.M.A, Nigerian Minerals and Mining Regulations 2011, Guidelines on Mineral Titles Application 2014, Nuclear Safety and Radiation Protection Act, National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations 2009, Environmental Impact Assessment Act, Explosives Act, NEITI Act and Land Use Act.
The sector is superintended by the Federal Ministry of Mines and Steel Development which functions primarily through MID, MEC, MCO, ASMD and MIREMCO. Types of solid minerals titles were highlighted. On the issue of royalty, reference was made to Schedule 4 of the Nigerian Minerals and Mining Regulations, 2011 which states the royalty payable in respect of 52 mineral types to be between 3%-5% advertorial.
The matter of priority of interest of land use and compensation was harped upon while referring to the provision of section 22 of the Nigerian Minerals and Mining Act which states that the use of land for mining operations amounts to overriding public interest which may result in the
Governor of the State revoking any prior right of occupancy in accordance with the provision of section 28 of the Land Use Act i.e subject to the payment of compensation to the occupier by the Government or mineral title holder, where so directed by the Government. Other incidences were stated to be payment of compensation to the community where land was leased and not revoked; and compensation for surface rights to holder/occupier.
On community relations, development and rehabilitation of mined out areas, it was reiterated that holders of titles are mandated to submit Community Development Agreement, environmental impact assessment statement and environmental project and rehabilitation programme before mining, to guarantee the rehabilitation of mineral title areas and make prescribed contribution to the Environmental Programme and Rehabilitation Fund. Holders are further obligated to embark on post mining rehabilitation. Incentives available to investors under the N.M.M.A were also mentioned.
The challenges of the sector were posited to include apathy of banks to finance the sector, security (according to World Investment Report (WIR) of the United Nation Conference on Trade and Development, the domestic economy lost about N1.33 trillion foreign direct investment owing to terrorists activities and illegal mining activities). Other challenges were indented to be infrastructure and power supply. The authors further canvassed the need to vest State Governments with the rights to deal with the resource which will require constitutional amendment with its attendant intricacies.
Some draw backs of the work include the fact that the contribution did not go beyond highlighting the legal and institutional underpinning the issue of mining of solid minerals in Nigeria. An exhaustive listing of relevant laws, regulations including relevant institutions and
their powers, functions and roles were not articulated. This defect does not aid a comprehensive understanding of such issues.In another work,128a background to the study and the place of legal and regulatory framework in the economic development of any Country was underpinned. The study articulated that the major regulatory framework for economic development in Nigeria has been the use of Medium-Term National Plans; and that the 1999 Constitution vests ownership of mineral resources in the Federal Government. However, the bane of development of the sector was stated to include lack of enforcement of laws. It was mentioned that large deposits of 54 different solid minerals exist in Nigeria. This statement or its source was not substantiated.
According to the author, the scope of the study is a focus on legal and regulatory frameworks in agriculture, oil, solid minerals, energy and power, research and development and human capacity development sectors of the economy from1960 to when the work was authored. Definition of terms and conceptual clarification was undertaken and terms like resource diversification, legal framework and regulatory framework were analyzed.
Further relevance of the study to solid mineral resources include the example of Turkey where the right to explore and exploit mineral resources belong to the State. However, the State may delegate this right to individuals or public for specific periods; this is in spite of Turkey being a unitary State, it empowers the Governor of a Province by law to approve on behalf of the State licences for the exploitation of mineral resources.
According to the contribution, in Canada which operates a federal constitution, Provinces are responsible for granting mining permits and access to land while companies pay taxes in the form of federal corporate income tax of 15% and Provincial mining taxes/royalties of between 10%-18%. The author expressed concerns that in Nigeria, the Constitution placed mining of solid minerals under the Exclusive Legislative List and therefore, States with large deposits of various resources awaiting exploitation by investors are encumbered by laws.
It was further posited that lack of proper coordination gave rise to illegal exploitation resulting in loss of revenue. It was recommended that Public Private Partnership (PPP) should be employed in exploitation of rich mineral potentials for socio-economic transformation of States. It was emphasised that Nigeria has many laws on exploitation and management of resources but the problem has been the lack of implementation and enforcement of such laws. It was further reiterated that Nigeria‟s effort at economic diversification has been hampered by constitutional provisions inhibiting State Governments, Local Governments and the private sector to exercise their initiatives.
The contribution stated that in Canada, mining contributed S36 billion to the country‟s GDP in 2010; 29% of the value of exports and earned S84 billion in taxes and royalties to government. In addition, Canada has over 5,000 companies that have created jobs and economic growth for over 115 communities and employed 308,000 Canadians in 2010.
It was also posited that in Nigeria, huge illegal mining activities still go on because of the non-active participation of the Federal Government that has exclusive right to mining exploration and exploitation; and that the mining sector contributed a meagre 0.4% to the GDP in 2011. This is in spite of the huge and highly demanded mineral deposits spread over Nigeria. The contribution, recommended that the National Assembly should enact law to legalise artisanal mining
As lucid as this contribution has been, the gaps observed in the work include the fact that no relevant provisions of laws (either extant or repealed) were cited to buttress some of the submissions. It may also not be correct to posit that the Federal Government has exclusive right to mining exploitation and exploration. The extant law being the Nigerian Minerals and Mining Act has as its philosophy created and legislate roles for the Federal Government as the regulator of the sector and the private sector as the owner/operator of won mineral resources. Inactivity in the sector could be attributed to numerous factors which inter alia include the slow implementation of reform agenda of the government, and the large number of abandoned or non-utilization of licences; which necessitated the policy of “use it or lose it”. Finally, the recommendation that the National Assembly should enact law to legalise artisanal mining may have been made without reference to the provisions of the N.M.M.A.
Another perspective or contribution to the subject matter 130reflected that Nigeria is said to have as many as 44 different types of minerals in more than 500 locations across the Country. Thus an exposition of mining potentials in Nigeria and the Country being a mining destination was mentioned. Some relevant laws underpinning the subject matter particularly, the provisions of sections 1, 1(2),1(3) of the Nigerian Minerals and Mining Act, 2007 and section 44(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) were discussed while the types, quantities, and locations of some mineral resources in Nigeria were mentioned. The use of land for the purpose of mining was considered being “overriding public interest within the meaning of Land Use Act.” Tax incentives and regime in the sector were highlighted. Resultantly, grave concern was expressed in the work about the Constitutional restriction placed
on State governments in developing the mining industry and therefore critical amendment of the Constitution was proposed.The reluctance of Multinational Corporations to fund major mining projects in the Country was attributed inter alia to the slow reform agenda. The other challenges of the sector were indented to include poor infrastructure (roads, power etc), security challenges and insurgency in the North-East. It was also recommended that environmental pollution should be seriously considered as it effects on communities can be devastating.
The above work may have inadvertently misinterpreted or misapprehended the role of the federal government under the Nigerian Minerals and Mining Act, 2007 because reference to the restriction of state governments as reflected may not have presented the correct position of the Constitution and other relevant extant laws; since the provision of the Constitution and such laws vested all mineral resources in Nigeria in the federal Government. As for developing the industry, state governments, if they so desire to develop mineral resources in order to enhance economic growth and development of environment of communities within their territories may, choose to set up companies and obtain relevant licences. It is however known from most parts of the world that governments and their agencies are not the best managers of businesses and economic resources, particularly in Africa.
The work did not also consider the impacts of mining of mineral resources and their effects on the environment and thus provide panaceas for mitigating or preventing such; more particularly, that there are many abandoned mining sites in Nigeria that are degraded and in urgent need for rehabilitation, resuscitation, restoration, remediation and reclamation.
Erhun,131expoused that despite the huge deposit of mineral resources in Nigeria, success of mineral and mining industry to poverty alleviation is relatively low, recognizing the fact that activities in the industry can cause damage to the environment and reduce economic growth if not carried out in environmentally sound manner. Also the challenge of locus standi to the activities of civil societies in ensuring the ventilation of rights was stressed.
The writer echoed that Nigeria is richly endowed with minerals and she has a very high significant share in the world‟s mineral market. It was expressed that the hope to use minerals as engine of growth made the Nigerian state to take full control of the industry. According to the writer, resuscitation of the sector begun and state enterprises were privatised and the investment climate enhanced through laws and administrative regimes. Tri-sector partnership involving government, private sector and local communities was introduced and encouraged.
Despite the foregoing, the Nigerian minerals sector, according to the writer, has failed to realise improved wellbeing for all through the exploitation of mineral resources for sustainable development. Nigeria‟s degraded environment as a result of activities in the mining sector culminates in challenges of health, deforestation and erosion etc. The challenges of mining were articulated to include environmental, investment, distributional/allocation challenge, governance and macro-economic, how to meet sustainable development imperatives, how to optimize the trade-off between environmental damage and the potential benefits of national and local economies. In most cases, it was asserted, mines decommissioning were not planned for in continuous manner.
The legal framework on the subject was highlighted to include Constitution of the Federal Republic of Nigeria, 1999 (as amended), Minerals and Mining Act, Land Use Act, Environmental Impact Assessment Act etc. For institutional framework, the National (sic) Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, 2009 were mentioned.
The effort also considered the framework for a sustainable mineral sector in Nigeria to include principles of sustainable development, integration of mining into the Nigerian economy, sustainable use of mineral resources, equity and eradication of poverty, precautionary approach, good governance, access to information, public participation, the principle of common but differentiated responsibility, capacity building, and financial assistance.
The work reached the conclusion that the Nigerian mining sector should be positioned to act as an engine or catalyst to the attainment of sustainable development in Nigeria. Recommendations made include the negotiation of matters for protection of stakeholders including mining communities, measures towards attaining sustainable development in the sector, broadening of standi, embarking on pollution prevention and control measures, while small scale mining should be allowed.
The lacunae found in the work include the fact that rather than refer or cite the extant law on mining of solid minerals, being the Nigerian Minerals and Mining Act, 2007 reference was made to the repealed Minerals and Mining Act, No. 34 of 1999. The other important omission is that in spite of the myriad of issues considered in the work no provision of extant legislations were cited to buttress issues raised and analysed. Also, no single case law was considered. The work erroneously termed the National (sic) Environmental (Mining and Processing of Coal, Ores an Industrial Minerals) Regulations, 2009 as part of the institutional framework on the subject rather than as legal framework.
Okorodudu-Fubara in her book132, particularly in one of the chapters titled “Land Resources Protection” while commenting on the Minerals Ordinance, 1946 recounted that some of the ensuing prescriptions on a licensee are very important from the perspective of control measure against some of the adverse environmental effects of mining operations. The learned author further asserted that section 34 of the Minerals Act, 1946 (Laws of the Federation of Nigeria & Lagos) is very significant, in as much as it represents an initial legislative effort to repair the damage to land through mining operations by imposing a statutory duty on mining companies to restore or reclaim mine-out lands.
The author further submitted that, pursuant to that provision of the law, the Minister may grant a mining lease and he may in any case make such grant subject to such covenants and conditions as he may think fit and in particular may require the reasonable restoration of any land used for mining operations by the replacement of the surface soil, the filing in of worked areas, the removal of any tailing or other dumps or heaps caused by mining operations and such other methods as may be reasonably required or in respect of any particular mining operations or methods of mining. The respected author’s subsequent analysis and criticism of the provisions of the above section relating to the discretion granted the Minister to order the holder or grantee of a mining right or mining lease to restore any area in respect of mining operations is no doubt plausible and the suggestion that the section ought to have been amended to make it mandatory for the Minister to order reasonable restoration of mine-out areas, was well focused to the point
of achieving environmental restoration following the mining of solid minerals. These suggestions however have been overtaken by events.
This is because, the Minerals Ordinance, 1946 had been repealed and more importantly, the provisions of section 115of the Nigerian Minerals and Mining Act, 2007 which is the extant legislation, has filled the lacunae observed by the learned author in her above exposition, on the Minister‟s discretionary power to require the reasonable restoration of mine-out land. The Nigerian Minerals and Mining Act, 2007133 provides that “where land which is subject of a mining lease has been exploited, the Reclamation (sic) mined out areas shall be restored by the applicant under the condition of the grant otherwise the relevant provision of section 10 of this Act shall apply.” It is imperative to state that theMinerals and Mining Act was enacted after the learned author published her work under review.
Some scholars however review, analyze and place reliance on the provisions of Section 34 of the Minerals Act (as was then relevant) and Section 115 of the N.M.M.A (being the extant provision) as they relate to restoration, rehabilitation and remediation in appropriate circumstances, without more. The concern should however include certain expectations of the rural host communities of mining areas as to what additional measures ought to be taken by miners in alleviating the impact of mining activities on the livelihoods of the people of the rural host communities- be they biological, economic, social, psychological and traumatic geared towards sustainable development. Some of these concerns have however been addressed by the provision of section 116 of the Nigerian Minerals and Mining Act which engrains the matter of Community Development Agreements between mining companies and host mining communities
and the Nigerian Minerals and Mining Regulations134which makes further provisions for compensation and social obligations of mining companies to members of host mining communities. Despite the foregoing, the concerns expressed herein may not have been totally resolved.
For example the impact of intolerable noise from the use of explosives and the operations of machines and equipment coupled with the experience of deleterious dust particles and noxious substances and chemicals constantly being experienced or inhaled by inhabitants of the various mining communities, are not issues that could be restored, rehabilitated, remediated and resuscitated within the context of the said section 34 of the repealed Minerals Act nor section 115 and other similar sections of the Nigerian Minerals and Mining Act.
The above assertion is made in the light of the fact that the restoration of mined-out areas though very enviable and desirable, does not by itself cushion the psychological, emotional and other personal and individualized trauma and experiences members of the communities of mining sites or areas go through. Idowu graphically represented the foregoing analysis/observation in the following apt words:
within the past three [now four] decades, environmental degradation and pollution of different dimensions have caused a lot of havocs to human lives and properties in Nigeria. The complexity of the problems at present has made the people, not only to suffer from nursing the various wounds inflicted on them: but to mount pressure on perpetrators of environmental pollution to give such things tangible enough to make up for the losses incurred or suffered through their acts.135
The foregoing remarks by the author though generalized to issues of environmental degradation and pollution in Nigeria is to some extent relevant to environmental degradation by the mining ofsolid minerals in Nigeria today. However, reference to people mounting pressure on perpetrators of environmental pollution to give things tangible enough to make up for the losses incurred or suffered through the acts of the perpetrators have not really gained prominence in the realm of enforcement of rights relating to environmental degradation by the mining of solid minerals in Nigeria.
The statement may be more correct in respect of issues of environmental degradation by the mining of petroleum (liquid) and gas mineral resources in Nigeria where the consciousness of members of host communities are more articulated and aggregated as a result of awareness, being aftermath of the long period and intense degree of ravage and harm to the environment of those areas and their inhabitants. It is expected that with increased mining of solid mineral resources and better appreciation of the deleterious effects of such activities, the awareness of the various host mining communities will become better articulated and result-oriented.
Furthermore, Idowu was apt, to a very large extent, in his conclusion when he submitted thus:Above all, the issue of payment of compensation to victims must not always be over emphasized as a final solution to the problem. It has been recognized over the years, that in cases of environmental degradation and other illicit acts that inflict injuries on persons, no amount of compensation in monetary and material terms can completely remove the effects of the actions. This proposition is now subsumed in the principle established by the celebrated United States’ Supreme Court decision in Aloeboetoc Reparation case136 known as causa causaeest causa causati meaning “to compel the perpetrator of an illicit act to erase all the consequences produced by his action” is completely impossible since that act causes effects that multiplied to a degree that cannot be measured.
The scholar continued the above analysis in the following words: “In the light of the above, governments, individuals and all stakeholders must refrain at all times, from acts capable of causing environmental degradation and pollution in Nigeria. No amount of compensation can completely repair whatever has been damaged once! Prevention is always better than cure.”138This advice by the scholar is more particularly relevant to issues or matters of
environmental degradation by the mining of solid minerals in Nigeria. This is because solid minerals are non-renewable resources and once their stock, are depleted in unsustainable manner, the Nation and the environment is worse off for it. It is clear from the experiences of numerous mining host communities who are directly affected by the deleterious effects of mining activities, that no amount of compensation can totally assuage the damage done to the environment and humanity. The panacea is to continue to mitigate and where possible prevent such negative effects in the interest of ensuring sustainable development in the mining of solid minerals in Nigeria.
It must however be admitted that the scholar in some parts of the work,139 discussed other categories of environmental pollution which people and the government have not been handling seriously and which are identified in both mineral and non-mineral producing areas of Nigeria to include noise pollution, wildlife mismanagement, unregulated destruction of forests in Nigeria through illegal felling and burning of trees, pollution of water bodies and the resultant constant loss of lives of many aquatic creatures and refuse disposal problems.
In spite of the foregoing contributions made by the scholar in the above work just examined, the scope and delimitation or delineation of the topic of the work titled “, is no doubt but curiously wider than the actual examination and discussion of the subject matter by the author. This is because inter alia, the work focused extensively on the issue of compensation for environmental degradation and pollution in Nigeria in the oil industry, that is by the mining of liquid (petroleum) resources to the detriment of other equally important and expected areas lik
for example, solid minerals sector. In the light of this, it is opined that the topic should have been delineated by adding the phrase-“An Appraisal of Mining of Petroleum Resources”.Okorodudu, in her work earlier reviewed, in a sub-title “Law, Policy and Conservation of Nigeria’s Natural Resources” considered sustainable development in the light of land, water and air resources.
In consideration of land resources, the scholar gave due consideration to land resources dwelling more on agriculture, farming practices including the adverse effect of bush burning, hunting, forest products and wild life. The author detailed the fact that misuse of land can have harmful impact on the environment and the existence of man. Also considered was the fact that the misuse of land results in deforestation and desertification. However, this aspect of the scholar’s work,140did not mention that, solid minerals constitute a vital part of land resources in Nigeria; and that their exploitation and exploration result in harmful impact and have deleterious effects on the environment and hence its negative effects on the activities and survival of mankind.
Grantley and Ray141 in their work stated the scope and objectives of the study, the basis for country selection, an over view of the mineral sector in the respective countries, financial regime, analysis of impacts of the regime, mineral development, summary comments and conclusions. Particular issues of mineral rights, administration and management, licensing system, termination of rights and dispute settlement were also discussed.
According to the authors, the Mining Acts of all the countries examined (Sierra-Leone, Tanzania, Zambia, Botswana, Papua New Guinea, Quebec and Malaysia) placed wide discretionary powers
on the Ministers in the grant or rejection of licences, and in the settlement of disputes between contending parties with respect to the preservation of their perceived rights under various licences and in the termination of rights awarded by licences. Some of these powers have been delegated to the public functionaries such as the Commissioner for Mines in Tanzania, the Deputy in Quebec or Warden in Papua New Guinea while decisions taken by the Ministers are subject to appeals in court.142 The authors also examined and assessed the contributions of mining to the GDP and economic growth of the countries examined, financial regime constituting inter alia of royalty, income-related taxes and resource rent while putting in perspective the impact of various fiscal provisions as enshrined in the respective statutes of the countries.
Elaborating on the issue of Mineral Development Agreement, the authors espoused that despite the presence of elaborate financial and mining codes, contemporary mineral developments in Less Developed Countries (LDCs) are effected by means of another instrument- the Mineral Development Agreement. According to the authors, all the LDCs in the study sample have concluded agreements with various mining companies to search for, exploit and market minerals found in their national borders.144 They asserted that a mining agreement between the government and a multi-national is a complex document which sets forth in detail the rights and obligations of the parties in the course of the various stages of the project. The legal basis for negotiation is the mining code and other legislation relating to taxation, foreign exchange controls and imports.
The foregoing work considered some essentials in the business of mining of mineral resources as it relates to the economies of the various countries considered. The issues discussed are no doubt relevant to Nigeria and therefore there are lessons to be drawn from the work as it relates to the Nigerian mining industry. However, the work did not discuss issues of the impacts of mining on environment and institutional framework of the countries of study. Though, such issues may not be directly relevant to Nigeria but relevant lessons could have been drawn. This researcher would bring on board the consideration of such issues within the context of the Nigerian mining industry.
Amponsah-Tawaih and Dartey-Baah145in their exposition, mentioned that mining is the world‟s second oldest industry after agriculture. They recalled that Ghana has a long tradition of gold mining with an estimated 2,488 metric tons (80 million ounces) of gold produced between the first documentation of gold mining in 1493 and 1997.146To stimulate investment into the minerals economy in Ghana, from1985 onwards, the government implemented series of review of laws and policies to create and effective regulatory framework for the mining industry which led to the liberalization of the mining sector; with the government selling out the majority of shares of state owned mines to private companies which were of foreign decent.147
The authors underscored the importance of mining; stating that minerals are a blessing and a gift available to be developed, sold and used to better the lot of a nation‟s citizens. A number of industrialised countries like Australia, Canada, Sweden andStates have depended on the exploration and extraction of minerals for their economic development. Mineral production generates income and foreign exchange through exports, and can stimulate local economies the
local purchase of inputs. Mining companies employ workers who earn income, some of which they spend on domestically produced goods and services. Governments receive taxrevenues from mineral production which are available to fund education, health care, roads, electricity supply and other forms of infrastructure development to the local communities within which they operate without recourse to their tax obligations.148The informed consensus of most researchers therefore is that minerals have the potential to contribute significantly to economic development.
The mineral sector in spite of the horrendous picture painted of it, the associated health and safety hazards, and the call by some international NGOs for its abolishment in developing countries, is heavily relied on by many developing countries as driving force for economic development.150 The contribution of mining to the GDP of Ghana was put at 5.2% in 2006.151The authors mentioned someof the negative impacts of mining and stated that by quantification, annual losses to the Ghanian economy through environmental degradation as found by the Environmental Protection Council in1988 put conservative estimates at 41.7billion Cedis theequivalent of 4% of total GDP.152
According to the authors, in spiteof the positive economic implications of mining in the development of an economy, some researchers and Non-Governmental Organizations (NGOs) continue to be on the heels of mining companies trying to discourage their operations in developing countries.153Friends of the Earth, an international NGO, in a position paper released
The above work provided an interesting vista into the contributions of mining to the economic development of Ghana, while it also stated some of the negative impacts of mining on the environment. It is submitted that though the figures of contributions and the nature of environmental degradation by the mining of minerals may not be the same in Ghana and Nigeria, mining holds potentials for development of both countries. This researcher would therefore appraise the legal and institutional framework for regulating the impacts of mining on the environment in Nigeria and steps being taken by the Nigerian Government to create level playing field forensuring sustainable mining activities in Nigeria.
Kaniaru, in his book155 outlined some priority environmental problems of the region (Southern Africa Development Community) to include land degradation (it is this scholar‟s opinion, that same applies to Nigeria) and asserted that in view of the environmental problems facing the region, the issue of the sustainability of its development strategies to meet the needs of the present generation without prejudicing those of the future generations to do the same is of utmost importance. It is imperative to state that the problem of environmental degradation whether by mining activities or not, is not peculiar to Southern African region alone, but also pronounced in Nigeria.
It is imperative to query that in the present Nigerian and African societies or nations where poverty, lack, deprivation and squalor have reached an unprecedented level can the present generation really be expected to bequeath unto the future generations mining resources which are
in fixed quantities and are not replenish-able, when it, the present generation has not met its needs? The concept of needs has to be analyzed against the background of the fact that since human beings, are insatiable, can their needs be totally, completely and permanently met or satisfied? A justifiable concern has also been raised by some scholars who asserted that since previous generations and indeed this generation of Africans have not exploited and utilized mineral resources in a sustainable manner this generation obviously cannot bequeath what it does not have based on the latin maxim nemo dat quod non habet.
Gundling‟s argument takes a practical approach to intergenerational sustainability. The scholar views responsibility not as a moral but legal obligation to the future generation and urges that attaining intergenerational equity is contingent on “intra generational equity”, that is equity amongst generations. Citing developing countries in Africa and Asia as examples of intra-generational equity (inequity) to be addressed, the writer argues strongly that equity among generations would be impossible without equity among the present generation since a generation not able to achieve equity among itself would probably not be able to hand equity unto the coming generations. The latin maxim, nemo dat quod non habet– no one gives what he does not possess, captures this view.
Salu158posited that until the promulgation of the Federal Environmental Protection Agency Act most of the legislations on the environment were not specifically meant as legislations on the environment, citing the example of the Minerals (Safe Mining) Regulations. The scholar reproduced Regulation 132159 which provides that “water containing poisonous or injurious chemical solutions used in the treatment of gold or other ores or for other purposes shall be effectively fenced off to prevent inadvertent access to it and notice boards shall be put in suitable
places to warn persons from making use of such water.” The writer did not appraise the implications of this provision
It should be appreciated that the mere fencing of such poisonous or injurious solutions and putting warning notices do not prevent such poisonous or injurious solutions from causing degradation to the environment- land, soil, water and air inclusive. Such substances could also spill into adjoining lands, carried by air or other means and inhaled with its negative consequences and implications for human health and well-being; and the overall degradation of the environment.
The Federal Environmental Protection Agency (FEPA) in one of its publications160 stated that the environmental impact of mining activities, are also of concern in Nigeria. The document went on to state that priorities include new measures for the restoration of land and vegetation following mining operations, stringent regulations for the disposal of mine tailings and waste; and more prudent use of non-renewable mineral resources. It is opined that the publication should have enumerated previous measures taken to tackle the problems of the impact of mining on the environment, before proposing new measures so as to ascertain whether the new measures could better assist in solving the challenges of degradation of the environment by the mining of solid minerals in Nigeria. The enumeration of previous measures would act as yardstick for analyzing whether the new measures will be effective. This perspective draws input from the historical development of a subject through history to aid in achieving better results. According
It is observed that additional measures that will assist in tackling the problem of environmental degradation resulting from mining activities, particularly solid minerals, may include information and education of the populace on the causes, consequences or effects of various environmental practices that can prevent, exacerbate or mitigate environmental degradation in Nigeria by the mining of solid minerals. It has also been observed that the impacts of mining of minerals on the environment in Nigeria, is exacerbated by the lack of enforcement162 of the various relevant laws, regulations and policies.
Lawal,163in a sub-title ‘The African and His Environment before European Incursion.164 In the contribution, the scholar utilized his wealth of experience and orientation to discuss the historical perspective and underpinning of the topic; and recounted how well the African protected his environment before the advent of the European. The research work adumbrated major environmental practices of the Africans prior to the advent of colonialism in sectors such as agriculture, viz-shifting cultivation, bush burning, conscious treecutting for fuel, gaming and wild life conservation; traditional African architecture; refuse disposal system etc. As valid as the analysis surrounding the environmental measures taken by African societies in the pre-colonial were, practices of African societies in the area of exploitation of solid minerals, particularly
measures adopted for avoiding or mitigating the impacts of mining of minerals on the environment, were not stated It must be underscored that at all times prior to the colonial annexation of African territories by the Europeans, mining of solid minerals in addition to agriculture occupied a major fulcrum in the socio-economic and political structures of African empires/kingdoms. It must be reiterated that mineral extraction is an integral part of human civilization.165 Solid mineral resources were available and exploited for varied uses ranging from mining of iron ore for tools of war and economic activities as in the provision of farming implements; furnace and treatment of gold for adoration and trade, etc. It is necessary to recount that the African avoided degrading the environment by mining of solid minerals through creation of traditional taboos, customs166, beliefs and cultural system of mining only those mineral resources in quantities that were necessary for their sustenance with a focus of bequeathing sustainable environment to succeeding generations.
In addition, not only in African societies or countries but the world over, land and land use is a major component of the environment; without land and all types of activities that take place on land giving mankind source of livelihood, generation and recreation, the environment will obviously be incomplete. This is in view of the fact that land and the other vital components of the environment provide mankind with the requisite habitat. These solid minerals are endowed and buried within the earth.
enumerated and discussed some of the effects of the mining of solid minerals on the environment. The scholar analyzed the provisions of the extant legislation on the subject matter of mining of solid minerals and examined some of the forward looking innovations brought by the Nigerian Minerals and Mining Act, 2007 e.g the creation of vibrant departments to monitor mining of solid minerals in the most sustainable manner by inter alia checking issues of environmental degradation that arise from mining activities of solid minerals. The scholar submitted thus:
The Minerals and Mining Act of 2007 (hereinafter called „the 2007 Act‟) is Nigeria’s extant legislation that regulates the mining industry. The 2007[Act] has expectedly legislated many of the environmental objectives of government into law. The aim is to givelegal backing to the environmental objectives encapsulated in the Mining Policy and compel the observance and enforcement of the various environmental obligations imposed on holders of mining titles.168
The Mining Policy referred by the author may have been the Mineral and Metals Policy, 2008. Should that be the case, the author’s analysis or rationalization may not be correct because the Minerals and Metals Policy, 2008 followed the Nigerian Minerals and Mining Act, 2007 and not vice versa as appear to have been posited by the scholar.
At this juncture, in order to appreciate policy making process, it is important to make the following clarifications. In the realm of Public Policy Analysis which is a field of study, according to Olaniyi,169 there are three stages involved in policy making process viz; the formulation stage; the implementation stage; and the feedback or the evaluation stage.170 Policy culminates in legislation when the problem or issue reaches a crescendo. However, in law, it is a mixed grill. Policy at times precedes legislation or law making while in other instances, law making precedes Policy making as in the case considered above where, the Minerals and Metal
Policy, 2008 followed the Nigerian Minerals and Mining Act, 2007. The justification for the mixed-grilled position in law is therefore understandable. At times government policies are made as catalyst to legislation or law making while at other times policies are made to give effect to law or legislation.
The earlier position of policy preceding legislation agrees with the subtle view expressed by Fagbohun, when he stated that “Governments have responded with public consultation, statements of policy, and with legislative intervention. This in turn has resulted in the emergence of and interpretation of new pieces of legislation, and the development of complex administrative regimes.”171 Policy influences the strict letter of pieces of legislation while the latter gives effect to policy.
Fagbohun remarked, “for Nigeria, as with other developing nations, with growth and development came many environmental problems.”173 He went ahead to catalogue some of those problems by utilizing the often used word “include” to indicate that the problems mentioned were not exhaustive. However, it is essential to observe that in spite of the clear problems of environmental degradation imminent from the mining of solid minerals in Nigeria transcending particularly the colonial period till the time of authoring his work, no mention was made of this problem.
The problems of environmental degradation by the mining of solid minerals in Nigeria are not far-fetched; for example, the Jos mines and Enugu coal mines tell the sordid impact of this Fogbound, O. (2010). “The Emergence and Development of Environmental Law in Nigeria (1960-2010).” In: Azinge, E. and Aduba, N. (eds.) Law and Development in Nigeria: 50 Years of Nationhood.
Nigerian Institute of Advanced Legal Studies), Lagos, activity on the landscape and quality of living of the people of that area up till date. The Enugu coal mines and the Okaba coal mines are also resplendent with challenges of environmental degradation and pollution. There are also gunge, pits and collapsing tunnels resplendent of the Okaba mines and the Jos mines with the issues of acid rains and blurring of visibility and serious dust haze around Ewekoro in Ogun State. The other reason why the impact of mining of minerals on the environment deserved mention in the said work, is because at a time in our history before the discovery of oil in Oloibiri in 1956, aside from agriculture, the mining of solid minerals provided the country with employment for its citizens and foreign exchange through the export for sale of these resources.
James, in his contribution gave a lucid and simplified scientific insight into mining of mineral resources including petroleum. The scholar highlighted some of the environmental problems associated with mining of minerals in Nigeria and made recommendations for ameliorating the negative impact of mining. The scholar recommended that “impact assessment of mineral mining be carried out to know the likely impact on the environment before mineral exploitation will commence.” According to this scholar, “it is hoped this will go a long way to equip the companies [individuals, mining co-operatives, relevant Ministries, Departments and Agencies of Government] and host communities on ways to effectively mitigate unwanted consequences.”174
In making the above submission, it is observed with respect, that the author should have made reference to the provisions of the Environmental Impact Assessment Act, 1992 which is a law that was already in existence at the time the work was published in 2005.
Since the publication of the work referred to immediately above, in appreciation of the vicissitudes and dynamics of the impact of the mining of solid minerals in particular on the environment, more proactive and result-oriented legislations tailored towards inter alia mitigating the impact of mining on the environment have been churned out by the Federal Government of Nigeria and these include the Nigerian Minerals and Mining Act, the National Environmental Standards Regulatory Establishment Agency Act and the Nigerian Minerals and Mining Regulations.
Osunbor, in his contribution to a compendium analyzed the impacts of solid minerals exploration and exploitation in Nigeria particularly on land, water and air. The scholar made reference to sections 46-47 of the Minerals Act, 1990 which dwelt on the problems of pollution associated with mining activities. The author pointed out that the sections made provisions for the safe disposal of overburden and excessive tailing from mining operations, the primary focus being the protection of water and water sources.175 The legislation referred to by the author i.e the Minerals Act, 1990 though relevant at the time of making his contribution, is now obsolete and the extant and subsisting legislation on mining activities in Nigeria is the Nigerian Minerals and Mining Act which also makes several provisions towards ensuring an environmentally friendly and sustainable mining regime in Nigeria.
The scholar in his approach compared the adequacy of the legal regime encapsulated in the Mining Act, 1990 with the Federal Environmental Protection Agency Decree (repealed) by stating that, “consequently, persons engaged in solid minerals exploration and exploitation, are now compelled to conform to a higher standard of environmental protection than that prescribed
by the Minerals Act [L.F.N. 1990].”176It should be clarified that the Minerals (Ordinance) Act, 1946 was collected as part of the Laws of the Federation of Nigeria and Lagos, 1958 and updated in the Laws of the Federation of Nigeria, 1990. So in text and content the relevant sections of provisions of the Minerals Act, L.F.N. 1990 under reference are impari material with the provisions of the Minerals Ordinance, 1946. The Federal Environmental Protection Act therefore came into force in 1988 to inter alia fill some of the gaps in the Minerals Act, 1990 as it relates to the issue of environmental degradation by the mining of solid minerals in Nigeria. This could be extrapolated from the following comments of the scholar:
The modern concept of the environment has now been expanded by the Federal Environmental Protection Agency Decree beyond water quality and landscape as envisaged under the Minerals Act to include air quality and atmospheric protection, noise control or abatement and the discharge of hazardous substances into the environment.
Ononiwu, in his exposition reviewed environmental challenges in Nigeria and strategies for tackling them. He noted that in its virgin state there is hardly any pollution in an environment but the activities of mankind in order to integrate the environment with development results sometimes in unwanted effects. He therefore concluded that the degradation of our environment is largely because of human activities.
In identifying or specifying the impacting elements on environmental components of land, water, vegetation and atmosphere, the scholar asserted that the elements of land include land cover, land use, farm lands, buildings, infrastructure, industries, solid minerals and soil while the results of the impacts are desertification, erosion, flooding, solid pollution, domestic waste and oil pollution. The scholar similarly proffered strategies and solutions for tackling the challenges ofdesertification, erosion, flooding and waste pollution. In parts of the work, the scholar
recommended the adoption of the polluter pays principle in tackling environmental problems generally. The work also in particular terms underscored the need for remediation, reclamation and rehabilitation of mining sites and the refilling of laterite sites; and the adoption of modern methods of Geoinformatics for data collection and Geographic Information System for forecasting where such degradations are likely to occur.178
The strategies contained in the work focused on issues of general prevention or mitigation of environmental pollution and degradation within the Nigeria environment horizon. It must however be mentioned that the work did not discuss strategies for preventing or ameliorating the impacts of mining of minerals on the environment in Nigeria. It is observed that such search light would have been localized, more revealing and relevant.
Amokaye,179 examined the issue of proof of environmental claims from three different perspectives, namely- pleadings, evidential issues and expert witness. The paper discussed in details representative action, burden and standard of proof, criminal prosecutions, the rule in Rylands v. Fletcher,180 expert evidence and environmental litigation etc. In spite of the detailed nature of the work, the cases and illustrations made by the scholar were mostly within the purview of the oil and gas industry; no particular mention of issues relating to proof of environmental claims in the solid minerals sector of the country was made. It is appreciated that the reason for this may not be unrelated to the fact that there has not been much of litigation of prominence in this area of our development. Examples and illustrations from foreign jurisdictions would no doubt have extended or developed the frontiers of knowledge in this area.
Another matter noteworthy is the fact that the scholar did not situate the issue of proof of environmental claims within the forays or area of Alternative Dispute Resolution mechanism and therefore to disputes that may rear their heads from the solid minerals sector of the economy. The need for such might not be currently pressing, but in the near future blue prints on such area will become most beneficial. This is because of the increasing Foreign Direct Investments being received into the country for the sector, and the need for such investors to be assured that disputes in the sector could also be resolved through Alternative Dispute Resolution method.
Busari, in his introductory remarks to the subject of Disputes Resolution-the ADR Approach, aptly posited thus:Environmental Dispute (sic) has (sic) risen in importance to become one of the foremost concerns of the world communities today. In the last few decades, environmental issues have become an inevitable subject globally and has (sic) gained dramatic consciousness. This is because environmental degradation and deterioration through human activities is proceeding at an alarming rate such that if the society and national governments of the world does (sic) not take positive steps, the consequences will be grave and irreversible, hurting not only ourselves but future generations.181
The scholar in the work under review recounted Alternative Disputes Resolution methods to include Negotiation, Mediation, Conciliation, Mini-trial, Med-Arb and Arbitration. The author also gave an insight to environmental disputes withexample of the Niger-Delta Region of Nigeria. The causes of environmental disputes were also adumbrated from the scholar’s perspective to include maritime boundary disputes between states, oil and gas trading contract, offshore construction and pipeline disputes; and quality disputes. The scholar indented the areas of environmental disputes to include those relating to water, air, soil, noise and tourism. Available remedies according to the scholar are within the precinct of order of injunction,
181Busari, T. (2007). “Environmental Disputes: The ADR and Arbitration Options.” Being Paper Presented at the Judicial Training Workshop on Environmental Law in Nigeria Held at Merit House, Abuja, (5-9 February, 20damages, mandamus, restitution and remediation, sanctions and penalties and imprisonment. The paper covered some of the advantages and disadvantages of Arbitration and ADR in environmental disputes.At times, the use of the ADR machinery in dispute resolutions in the solid minerals sector may deliver better results than recourse to the slow grinding wheel of the court system.
It may be in realization of this that the Nigerian Minerals and Mining Act and particularly the Nigerian Mining Regulations contained elaborate machinery and profuse provisions for dispute resolution in the mining sector The gap created in the scholarly work and which reared after the delivery of the work could be found in the fact that no recourse or discussion of issues relating to disputes resolution arising from the mining of solid minerals sector either by way of degradation of the environment or otherwise was considered in the paper. By implication and putting it in better perspective, no matters of ADR were considered in the discourse in respect to this crucial aspect of economy and national livelihood.
Furthermore, since the scholarly work was presented in February, 2007 all post February 2007 legislations and regulations could not have been considered in the work. For example the Nigerian Minerals and Mining Act enacted in 2007 with a commencement date of 29th March, 2007 contained further forays or insight on the subject examined by the work under review. Also, more recently, the Nigerian Minerals and Mining Regulations, 2011 provided additional fulcrum on the subject.
According to the Nigeria National State of the Environment Report (NSOER) 2008, specific land degradation types in the different ecological zones of Nigeria particularly as it concerns the Savannah (guinea, sudan and sahel) includes mine pits and dumps.182 This submission appears not only simplistic or over summarized but has not really captured the enormity of environmental problems and issues relating to the mining of solid minerals in particularly the said Savannah ecological zone. For the purpose of clarity and for setting the records straight, environmental land degradation issues in Nigeria associated with the mining of solid minerals in Nigeria in the Savannah region (the middle-belt region being part of it) are humungous as has been mentioned or would be found stated in various parts of this thesis.
Also in the same Report referred herein above,183 environmental problems in Nigeria were listed as deforestation, desertification, soil erosion, biodiversity, water pollution, flooding, solid waste disposal, fire hazard, air pollution and drought. The causes, consequences and solutions of all this problems were also stated in the Report.184 Some land degradation issues in the Savannah were highlighted to include mine pits and dumps.185 The same pattern of analysis was carried out in some other parts of the Report186 without reference to mining of solid minerals activities in holistic terms. It is a matter of concern that in spite of the disturbing nature of the degradation of the environment by the mining of solid minerals in Nigeria, the causes, consequences and solutions could not have been proffered by the authors of the Report.
The place of mining of solid minerals in Nigeria is core and its contribution to the Nigerian economy has been on the increase over the years. It is therefore opined that, the inadequate attention devoted to the consideration of issues of degradation of the environment by the mining Nigeria National State of the Environment Report, Abuja (2008), pof solid minerals in Nigeria is a major oversight and constitutes a draw back on the reliability of the Report.
The intriguing aspect of this observation is that issues relating to environmental degradation by the mining of petroleum and gas resources were discussed in details in the Report. With this submission, a possible argument or reason may be that, there is in existence the Federal Ministry of Mines and Steel Development and other agencies of government such as NESREA to cater for issues relating to degradation of the environment by the mining of solid minerals in Nigeria. The flip side of this possible argument is that there is also in existence the Federal Ministry of Petroleum Resources and other agencies of the Federal Government handling issues of mining of petroleum resources and matters of environmental degradation by the mining of liquid mineral resources in Nigeria. In spite of this, issues of environmental degradation by the mining of liquid mineral resources were given far greater attention in the Report.
The foregoing, calls for a greater consideration of issues relating to the degradation of the environment by the mining of solid minerals in subsequent editions of the Nigeria National State of the Environment Report which is a Report put together by some experts for the Federal Ministry of Environment, Housing & Urban Development and the United Nations Development Programme. It is opined that to confer on the Report the desired reliability and use by all, its compilation should be a collaborative effort between the Federal Ministry of Environment, Housing & Urban Development and the Federal Ministry of Mines and Steel Development in order to ensure that all issues relating to the mining of solid minerals are properly and adequately integrated.
In order to implement the above suggestion, the scope of the already existing Memorandum of Understanding between the two Ministries187 which now mainly covers the issue of the procedure and process for environmental impact assessment in the solid minerals sector could be expanded to include issues of collaboration on all matters that concern the environment and the mining of solid mineral resources in Nigeria.
In the light of the foregoing review of literature on the subject area and the gaps pointed out or observed, efforts would be made to fill in the said gaps in this thesis in order to provide a more comprehensive coverage and analysis of issues underpinning the impacts of mining on the environment in Nigeria. It is observed that though, some of the literature reviewed above provided various perspectives of backgrounds to the impact of mining on the environment as much as it relates to the topics of their consideration, but such backgrounds were not as elaborate. In this thesis, a more elaborate and comprehensive background to the study would be articulated.
The impacts of mining on the environment, human health, biodiversity, climate change, sustainable development goals and analysis of legal responses to environmental degradation in Nigeria, appear to have been considered as various sub-topics in some of the works. In order for some of these contributions to become more beneficial, the aforementioned issues would be articulated under a common banner for enhanced contribution to knowledge.
Some of the works reviewed provided understanding of the legal and institutional framework underpinning this area of study but a comprehensive detailing, discussion and analysis of all pertinent laws and regulations including the lacuna inherent in them as they relate to the subject
matter of this thesis were not expounded in details. This thesis will attempt to fill these gaps by discussing in details all relevant laws and regulations underpinning the subject matter of this thesis, pointing out the lacuna therein and making proposals for amendments, where deemed necessary.Similar observation goes in respect of the discussion of institutions or institutional framework regarding this interest of study.
Though some previous works highlighted and discussed them, in most of the works, the said institutions were not comprehensively listed and discussed. In this thesis, efforts have been made comprehensively discuss these institutions stating their enabling laws, functions, roles, structures and challenges.The works reviewed also did not consider in details matters relating to compensation, community development agreements, alternative dispute resolution mechanisms as applicable in the mining sector and how these could contribute to mitigating or preventing the impacts of mining activities on the environment in Nigeria. This thesis has therefore embarked on detailed discussions of these important matters.
In virtually all the literature considered except very few, case laws were not discussed in order to buttress certain positions in relation to the subject matter of this thesis. Therefore, in this thesis relevant cases were cited to buttress legal positions or explain certain legal provisions.
1.8 Organizational Layout
This research work contains a general introductory chapter titled chapter one which captures the background to the study, statement of the problem, aim and objectives, scope of the research, justification of the study, methodology of the study, literature review and organizational layout.
Chapter two is assigned to conceptual clarification of key terms. The chapter contains detailed definitions and exposition of terms and concepts. It begins with an introduction and continued with the clarification of the following key terms viz: Environment; Mine and Mining; Mineral Resources; Solid Minerals; Artisanal and Small Scale Mining/Miners; Illegal Mining/Miners; Degradation and Pollution; Precautionary Principle; Polluter Pays Principle and Sustainable Development.
Chapter three considered the impacts of mining activities on the environment, human health, livelihoods, climate change, biodiversity and sustainable development goals; and analysis of legal responses to environmental degradation. It opened with an introduction and subsequently considered causes and effects of environmental degradation by mining of solid minerals in Nigeria; the impacts of mining activities on the environment, human health, livelihoods, biodiversity, climate change and sustainable development goals; and analysis of legal responses to environmental degradation which discussed some basic related common law cause of action for protection of the environment; community development agreements; alternative disputes resolution mechanism and compensation as platforms for protecting the environment; and finally, funding and sources for protection of the environment from the impacts of mining in Nigeria.
Chapter four dwelt on the legal framework underpinning this thesis and similarly commenced with an introduction. The next issue considered is the legal framework which contains a discussion of laws, regulations and policies underpinning the subject matter of this research viz: Constitution of the Federal Republic of Nigeria, 1999 (as amended), Nigerian Minerals and Mining Act, Nigerian Minerals and Mining Regulations, National Environmental Standards and Regulations Enforcement Agency (Establishment)Act, Environmental Impact Assessment Act, Harmful Waste (Special Criminal Provisions) Act, Land Use Act, Labour Act, Nigeria Extractive Industries Transparency Initiative Act, Nuclear Safety and Radiation Protection Act, Explosives Act, National Policy on the Environment, National Minerals and Metals Policy, National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, National Environmental (Noise Standards and Control) Regulations, National Environmental (Quarrying and Blasting Operations) Regulations, National Environmental (Permitting and Licensing System) Regulations, National Environmental (Sanitation and Wastes Control) Regulations and National Environmental (Surface and Ground Water Quality Control) Regulations. The chapter also considered international instruments on the subject matter of the thesis and mechanisms for enforcement of environmental protection in Nigeria.Chapter five elucidated the institutional framework of the subject matter of the thesis. The chapter starts with an introduction followed by the item “institutional framework” which considered the institutions relevant to the thesis viz: Federal Ministry of Mines & Steel Development, Mineral Resources and Environmental Management Committee, Mining Cadastre Office, Federal Ministry of Environment, National Environmental Standards Regulatory Enforcement Agency (NESREA) and State Ministries of Solid Minerals ResourcesThe penultimate Chapter (Chapter six) has an introduction and the chapter considered the matter of data and analysis. Finally, Chapter Seven is the summary and conclusion Chapter which enunciates or adumbrates issues of summary, findings and recommendations