Lawyers divided over Fayemi’s point on minerals mining

Lawyers appear divided by the recent announcement by Kayode Fayemi, minister of Mines and Steel Development, that state governments are now free to explore and exploit the mineral resources in their domains provided such is done legally without interfering with locations already given to other stakeholders.

At the moment, under the 1999 constitution, solid minerals exploration is on the exclusive list, which means that taxes and royalties from mining go to the federal purse rather than states and communities who suffer the serious implications of mining activities.

According to the former Ekiti State governor, who made the disclosure in Abuja while hosting Wale Oluwo, Lagos State commissioner for Energy and Mineral Resources, although the Federal Government still has exclusive rights to mine minerals across the country, the constitution encourages states to either set up their own investment corporations or partner private investors to exploit minerals in their domains.

“Mineral exploitation is exclusive to the Federal Government, but the reality is that land ownership is also exclusive to the state governments. States are free to explore and exploit the resources since such activities would provide jobs for Nigerians and increase the Federal Government’s revenue through the payment of royalties. That is one of the points I have tried to emphasise about governance when people talk about the exclusivity of the mineral rights in the Nigerian constitution. Yes, it is exclusive; but there is absolutely nothing in the law; in fact, it is being encouraged in the law for states to either set up their own investment corporations or go into partnership with the private sector in order to exploit what is available to them in their states.

“This is provided the coordinate has not been given to another interested stakeholder before application comes from the state. This is very important for you to know. So, our primary interest is that these resources are explored and exploited. Once you do that within the law, the government will at least get royalties from you, get taxes paid legitimately, have people employed in this area. This achieves our objective of alternative revenue generation for the country and job creation for our people”, the Minister said.

Bola Alabi, a Lagos-based legal practitioner, suggests in an interview with BDSUNDAY that the country has to amend the 1999 Constitution to ensure that the mining laws are now included in the Concurrent Legislative List, contrary to the existing situation whereby mining operation is restricted to the Exclusive List, in order to give state governments legal backing to participate in mining business.

According to him, it was on the basis of the untapped natural resources across the 36 states that some delegates at the 2014 National Conference canvassed for the creation of additional states at the Confab, and that the governors are lazy, hence, not ready to till the ground and make money.

But Auwal Ibrahim Musa, acting general secretary, West African Civil Society Forum (WACSOF), & executive director, Civil Society Legislative Advocacy Centre (CISLAC), told BDSUNDAY that while it is expedient for Nigerians to begin to agitate for the removal of the exploration of natural resources from the Exclusive List, to the Concurrent List in order to pave the way for states to participate in mining natural resources, noted that the constitutional amendment requirement of such process would take too much time that the country can afford at the moment.

According to him, what is urgent for the Buhari led FG to do is to take expatriates to states with huge mineral deposits and the equipments for them to work with and engage the states in the process.

“For now, we can just encourage the FG to diversify the economic and increase ways the country can generate revenue. This is what we have been saying. The states may not have the man power to explore resources for now. The states can also be encouraged to mine and pay taxes to the FG”, he said.

He said laziness and corruption was responsible for the untapped natural resources and that Nigeria is blessed beyond measure with the kind of natural resources current buried in soils across the country.

“They are only looking for oil. That is why they are not interested in developing other minerals. Even the oil money is only in the hands of very few people. Many Nigerians including the oil producing communities themselves are not benefitting. We are hoping that the current government would block all the leakages in our system”, he said.

Jonathan Ikiebe, Senior Partner, Ikiebe & Co, said since the minister of solid mineral has given the go ahead to state governments to exploit resource in their respective domain, seeking legislative backing at the NASS may result in legal complication that would countered the minister’s ‘good intention’.

According to him, all the state governments’ needs to do is to enter into business partnership agreement with the FG like private investors who wants to invest in natural resources without necessarily seeking to amend the legislative bottlenecks created by the 1999 constitution which puts the exploration and exploitation of natural mineral solely in the hands of the FG.

“Going to the National Assembly to seek the transfer of ownership of natural resource from federal to state governments may be misunderstood by regional lawmakers to mean agitation for resource control; which is not the intention of Dr. Kayode by saying state governments are free to explore and exploit natural resources in their respective soil. So, it will definitely not pay the state governments to seek legal backing because it may backfire at the NASS.

“All they need to do at this point in time that they are in dire need of funds is to enter into business partnership like local and foreign investors who are already in the sector with the FG. Agreement should be reached since the land where the natural resources are located belongs to the state governments. State governments should go ahead invest in the sector and buy dues to the FG while making their money in the process”, he told BD SUNDAY.