Spaces for Change’s Victoria Ohaeri joined other panelists to discuss the legal and regulatory impediments to states’ exploitation of solid mineral resources on Sunday, January 24, 2016 on Radio Continental, 102.3 FM Radio, Lagos. This discussion came on the heels of a recent statement credited to Dr. Kayode Fayemi, the minister of Mines and Steel Development. In that statement, he declared that state governments in Nigeria are now free to explore and exploit the mineral resources in their domains.
Except Dr. Fayemi was probably misquoted, that directive appears to be legally unenforceable and unconstitutional under Nigeria’s extant laws on solid mineral development. First off, § 44(3) of the Constitution of the Federal Republic of Nigeria vests the control of all minerals and mining concerns on the federal government, and empowers National Assembly to exclusively make laws in respect to mining in Nigeria. § 44(3) states: The entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.”).
Not only that, the Nigerian Minerals and Mining Act 2007, which is the principal legislation regulating the Nigerian mining sector, follows a similar path treaded by the Nigerian Constitution. The Act bestows the ownership and regulation of mineral resources on the Federal Government of Nigeria, without any attribution to the states.
Dr. Fayemi’s premise that “land ownership is exclusive to the state governments” shows that he was not oblivious of the exclusivity of the mineral rights in the Nigerian Constitution. The missing link here is that the Constitution and other principal legislations on extractive development draw a sharp distinction between the resources on the top soil and the bedrock. The power vested on state governors by Section 1 of the Land Use Act, 1978, to hold land in trust and administer for the use and common benefit of all Nigerians, does not extend to the extraction of solid minerals on the bedrock of the soil. In addition, Minerals and Mining Act 2007 vests the administration of the mining industry in the Ministry of Mines and Steel Development (MMSD) and not on state governors, or state agencies.
Another issue that panelists considered is whether this directive, assuming it is legally enforceable, should be extended to oil mineral resources. State’s right to exploit mineral resources within their domain is consistent with the recourse control agitations in the Niger Delta that gave rise to militancy in the oil-rich Niger Delta region. The conflict that once prevailed in the Niger Delta was mainly about gaining ownership and control of the region’s vast oil resources. This demand was never granted. Therefore, on what basis would the federal government accede to states’ request to exploit solid minerals in their domain, but withhold demands for resource control in the Niger Delta?
And again, another issue that panelists advised the government to consider is that of environmental impacts of extractive activities, particularly the adverse impacts on communities. Zamfara state, located in North West of Nigeria with a population of approximately 4.3 million people, has recorded high infant mortality rates and massive contamination of water sources due to poor regulation of artisanal gold mining in the state. So, beyond handing down the directive on states to exploit their resources, a plethora of unresolved questions and issues must be addressed, and mechanisms put in place for expanding democratic engagement around these concerns.