In summary, the general principle relating to ownership and liability of tailing waste seems dependent on:
i. What the operative rules say about mining waste management; and
ii. Whether the mine tailings are classed as waste or re-usable resource in the prevailing legislation
Article 4.2 of the Directive 2006/21/EC provides that member States shall ensure that the operator takes all measures for preventive action to avoid harm including the management of any waste facilities using the Best Available Technique (BAT). However, no particular technique or technology was recommended.
The regime for tailing and waste management and liability encompasses:
I. Prescriptive policy characterisation of residues either as waste or a resource
II. Sector-wide cradle-to-grave regulatory approach
III. Monitoring and Enforcement
Furthermore, the following are the elements of a strong liability management regime:
I. Sector-wide regulatory regime and enforcement mechanisms through Mining Legislation and Environmental Impact Assessment Legislation;
II. Operator’s Waste Management Plan
III. Suitably designed, construction and management of waste facility
IV. The Operator shall bear the cost of measures taken after closure unless there is a State takeover
The above analysis demonstrates that the Nigerian minerals and mining sector is governed by a competent regulatory framework which provides substantial clarity relating to the applicable obligations and environmental safety requirements for investors. Apart from the observation made in this article relating to the need to clarify regime for long term liability for mining wastes, the provisions of both NMA and NMMR substantially met the international best practice threshold on the management of waste materials arising from mining operations in Nigeria. This is crucial because one of the attractions for foreign investors is that a country’s regulatory environment is predictable, less whimsical or obscure. The Nigerian framework clearly meets the regulatory certainty test in terms of having the right regulatory framework in place. The next challenge for the regulators will be to ensure an orderly and systematic rule-implementation. It is important to avoid illegal or extra-statutory discretionary waivers of extant provisions which may lead to history environmental damage requiring a major remedial exercise such as the ongoing clean up in Ogoni land. Thus, ensuring that this is the case in relation to the Nigerian mining industry is one invaluable way to attracting the much needed foreign investment into the sector.
The exigencies of the current economic climate in Nigeria require a more aggressive diversification drive particularly at the level of the Federal Government of Nigeria. The mining sector is generally regarded as highly promising and a potential gateway to unlocking another strategic national endowment for economic growth. This article makes the case that putting the right legal and institutional framework in place is critical way of attracting investment into the sector.
Obinna Dike
