In this post we will be looking at the Land Access Under the Mining Act, Land Access Pre-Conditions to Commencement of Development and Land Access Dispute Resolution Mechanism.
INTRODUCTION
The right to ownership and control of natural resources under the Nigerian law is constitutional. The Constitution of the Federal Republic of Nigeria 1999 (as amended) section 44 (3) and item 39 Schedule II of the Exclusive Legislative List vests the control and management of the natural resources and hydrocarbon operations on the federal government for the common good and benefit of the citizens. The Land Use Act recognizes the Governor of each State as the Trustee of the state land on behalf of the state.
The critical issue, therefore, is to assess the effectiveness of this relationship and determine the key issues for policy makers and investors with respect to land access in the Nigerian mining sector. The Mineral and Mining Act vests “the entire property in and control of all the minerals in or upon any land in Nigeria in the Government of the Federation”. This is affirmed by the 1999 Constitution.
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This puts Government in a frontal role in mineral development through the Federal Ministry of Solid Minerals Development established in 1995 to facilitate the development of the mining sector in accordance with the policy of the government. The authority to manage the sector including responsibilities for policy formulation and the grant of mining titles is vested in the Minister for Solid Minerals Development.
Land Access Under the Mining Act
The Mining Regulations are the subsidiary legislation issued under the Nigerian Minerals and Mining Act 2007 (the Mining Act) and Nigerian Minerals Regulations 2011 are the primary sectoral legislations governing the Nigerian mining sector. The Regulations contain detailed provisions for the administration of mineral titles by the Mining Cadastre Office, including the procedure, duration and documentation required for the application of a small-scale mining lease and for the application for a permit to export minerals for commercial purposes.
The laws expressly provide that the entire property in and control of all mineral resources in, under or upon any land in Nigeria shall be vested in the Government of the Federation for and on behalf of the people, and any land in which minerals have been found in commercial quantities shall be acquired by the Government of the Federation in accordance with the provisions of the Land Use Act.
Section 3 of the Mining Act however excludes some lands from minerals exploration and exploitation and they include: any land set apart for, or dedicated to any military purpose except with the prior approval of the President, any land within fifty metres of an oil pipeline licence area granted under the Oil Pipeline Act, any land occupied by any town, village, market, burial ground or cemetery, ancestral, sacred or archaeological site, appropriated for a railway or situated within fifty metres of a railway.
Any land that is subject to the provisions of the National Commission for Museums and Monuments Act or National Parks Service Act, and any land which a Mineral title has previously been granted by the Mining Cadastre Office and where such Mineral title is subsisting.
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Land Access Pre-Conditions to Commencement of Development
The preconditions to commencement of development are that the holder of the Mineral title has duly notified, compensated, or offered compensation to all the users of land within the mining lease area. Section 72 of the Mining Act provides that the lawful occupier of any land within an area subject of mining lease shall retain the right to graze livestock upon or to cultivate the surface of the land in so far as the grazing or cultivation does not interfere with the mining operations in the mining lease area.
the law places some responsibility on the Minister before granting a Mineral title on any private land or any state land which essentially provides that the Minister shall cause the owner or occupier of the land to be informed of the intention to grant the Mineral title and require the owner or occupier of the land to state in writing the rate of annual surface rent which the owner desires should be paid to him by the Mineral title holder and if the Minister is satisfied that the rent is fair and reasonable, the amount shall be communicated to the Mineral title holder subject to revision by the Minister at intervals of five years.
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Land Access Dispute Resolution Mechanism
On a generally note, powers exercised under the Act are subject to judicial review under Administrative Law. The Minerals and Mining Act however provides for arbitration as an additional forum for dispute settlement between the Federal Government and titleholders.
Section 109 of the Mining Act provides that in the event that a holder is unable to pay the compensation six months after the grant of the Mineral title, the Minister may suspend the Mineral title until the amount is paid and deposit for any further sum is paid to the Government; and where the holder does not make the payment within 30 days after the suspension, the Minister may revoke the Mineral title.
Section 103 of the Mining Act clearifies the land occupied by the Mineral title holder, or the date on which lessee ceased to occupy the land or the proportion of the surface rent payable to the persons entitled to receive any portion of the surface rent shall be referred to the Land Use and Allocation Committee of the relevant State for determination, and the report of the Land Use Allocation Committee shall be taken into consideration by the Minister in making a decision.
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CONCLUSION
Section 19 of the Mining Act establishes the Mineral Resources and Environmental Management Committee for each state of the Federation. The Committee, which consists of a representative of the Ministry for land matters or mineral related matters in the State, a representative of the Surveyor General in the State, a representative of the local government council affecting the area to be considered, a representative of the Mines Environmental Compliance Department etc. was mandated to, among other functions, consider issues affecting compensation and make necessary recommendations to the Minister, advise the Minister on issues affecting the grants of Mineral titles, advise Mineral title holders in their interactions with state governments, local government councils, communities etc.